Recent rule changes remind judges to gatekeep expert witnesses.
As of December 1, 2023, a change to the Federal Rules of Evidence has made the bar for medical expert witnesses a little higher.
The substantive changes to Rule 702 are relatively small. The updated rule clarifies that attorneys seeking to introduce expert testimony must prove it is "more likely than not" that the requirements of Rule 702 are met. In addition, Rule 702(d) now says that rather than simply having reliably applied their principles and methods, experts must give testimony that actually reflects a reliable application of principles and methods.
However, the big change is in the attached committee note. "Judicial gatekeeping is essential," the note reads, to ensure that the jury hears expert testimony that is actually within the bounds of the expert's basis and methodology.
According to Bloomberg Law, some judges anticipated the new changes when making decisions about expert witnesses even before the rule change went into effect. These changes underscore the importance of having the right expert witness in high-stakes litigation.
The new rules may increase the risk of an expert being excluded
The updated rule is not a dramatic substantive change, and it does not change the procedure to tender an expert witness or for the judge to evaluate that witness. However, it does raise the bar for litigants seeking to introduce an expert witness and may increase the likelihood that challenges to admissibility succeed.
Still, the principle behind the rule has not changed: the judge must be persuaded that the expert witness will help the jury understand the evidence and the facts in issue in the case, using reliable medical principles and methods.
Having the right expert witness will make all the difference
If the changes to Rule 702 do result in more expert witnesses being excluded, then the importance of having the right expert witness is only increased. Medical experts' credentials, such as Board certification in the appropriate specialty, are just the beginning. The expert must also have the experience needed to properly analyze the evidence and provide accurate, reliable testimony. It's not enough (indeed, it's a logical fallacy) to say "I'm an expert, therefore I'm right." Rather, the effective expert witness must demonstrate that their testimony is based on reliable methods and principles.
Our network of medical professionals is well-equipped to meet the challenges presented by the updated rule. Our medical experts are not only highly qualified physicians and other medical professionals but also have experience analyzing evidence and testifying in depositions and at trial. Moreover, we proudly work with both plaintiff and defense attorneys, and our experts do not hesitate to explain when they believe a case is not viable. We are committed to the truth, not to one side, which makes it much more difficult to object to the experts in our network for possible bias.
Now more than ever, the right medical expert witness can make or break a case. If you need a medical expert for a potential legal matter, reach out to Rieback Medical-Legal Consultants today.