Federal Rule of Evidence 702 - The Proposed Revision
The Daubert decision by its language was limited to scientific
expert opinion. That limitation gave rise to the question of the applicability
of Daubert to other technical expert opinion. In the interest
of addressing the issue of a broader application of Daubert and
of codifying Daubert law, the Advisory Committee on Evidence
Rules undertook consideration of amendatory language to FRE 702. In June
1998, the Standing Committee on Rules of Practice and Procedure approved
for publication and comment additional language to follow the current
text of FRE 702.
Proposed Rule 702. Testimony of Experts
If scientific technical or other specialized knowledge will assist the
trier of fact to understand the evidence or to determine a fact in
issue, a witness qualified as an expert by knowledge, skill, experience,
training, or education, may testify thereto in the form of an opinion
or otherwise, if (1) the testimony is based upon sufficient facts
of data, (2) the testimony is the product of reliable principles
and methods, and (3) the witness has applied the principles and methods
reliably to the facts of the case.
Shortly after the close of comment on the proposed Amendment to FRE 702,
the U.S. Supreme Court issued an opinion in Kumho Tire Co.
v. Carmichael, 119 S.Ct. 1167 (1999). Kumho specifically
addressed the Daubert ruling on scientific expert opinion,
urging flexibility by federal judges in such application. The Kumho decision
reviewed the five factors for evaluation of reliability of expert
opinion first identified in Daubert and indicated quite
clearly that such factors were never intended as absolutes. Kumho urged
a totally-of-circumstances approach such that no single factor would
control the ultimate admissibility of expert opinion evidence. [Posegate,
CH. LRP Publications, Vol. 7, Iss. 8, 1999:3]