Rule 702. Testimony
by Experts.
(a) Subject
to the limitations in paragraph (b), a witness who is qualified as an expert by
knowledge, skill, experience, training, or education may testify in the form of
an opinion or otherwise if the expert’s scientific, technical, or other
specialized knowledge will help the trier of
fact to understand the evidence or to determine a fact in issue.
(b)
Scientific, technical, or other specialized knowledge may serve as the basis
for expert testimony only if there is a threshold showing that the principles
or methods that are underlying in the testimony
(b)(1) are
reliable,
(b)(2) are
based upon sufficient facts or data, and
(b)(3) have
been reliably applied to the facts.
(c)
The threshold showing required by paragraph (b) is satisfied if the underlying
principles or methods, including the sufficiency of facts or data and the
manner of their application to the facts of the case,
are generally accepted by the relevant expert community.
Effective
November 1, 2007
2011 Advisory Committee Note. The language of this rule has been amended as part of the
restyling of the Evidence Rules to make them more easily understood and to make
style and terminology consistent throughout the rules. These changes are
intended to be stylistic only. There is no intent to change any result in any
ruling on evidence admissibility.
Original Advisory
Committee Note. Apart from its introductory
clause, part (a) of the amended Rule recites verbatim Federal Rule 702 as it
appeared before it was amended in 2000 to respond to Daubert v.
Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). The 2007 amendment
to the Rule added that introductory clause, along with parts (b) and (c).
Unlike its predecessor, the amended rule does not incorporate the text of the
Federal Rule. Although Utah law foreshadowed in many respects the developments
in federal law that commenced with Daubert, the
2007 amendment preserves and clarifies differences between the Utah and federal
approaches to expert testimony.
The
amended rule embodies several general considerations. First, the rule is
intended to be applied to all expert testimony. In this respect, the rule
follows federal law as announced in Kumho Tire
Co. v. Carmichael, 526 U.S. 137 (1999). Next, like its federal counterpart,
Utah’s rule assigns to trial judges a “gatekeeper” responsibility to screen out
unreliable expert testimony. In performing their gatekeeper function, trial
judges should confront proposed expert testimony with rational skepticism. This
degree of scrutiny is not so rigorous as to be satisfied only by scientific or
other specialized principles or methods that are free of controversy or that
meet any fixed set of criteria fashioned to test reliability. The rational
skeptic is receptive to any plausible evidence that may bear on reliability.
She is mindful that several principles, methods or techniques may be suitably
reliable to merit admission into evidence for consideration by the trier of fact. The fields of knowledge which may be
drawn upon are not limited merely to the "scientific" and
"technical", but extend to all "specialized" knowledge.
Similarly, the expert is viewed, not in a narrow sense, but as a person
qualified by "knowledge, skill, experience, training or education".
Finally, the gatekeeping trial judge must
take care to direct her skepticism to the particular proposition that the
expert testimony is offered to support. The Daubert court
characterized this task as focusing on the “work at hand”. The practitioner
should equally take care that the proffered expert testimony reliably addresses
the “work at hand”, and that the foundation of reliability presented for it
reflects that consideration.
Section
(c) retains limited features of the traditional Frye test for expert testimony.
Generally accepted principles and methods may be admitted based on judicial
notice. The nature of the “work at hand” is especially important here. It might
be important in some cases for an expert to educate the factfinder about general principles, without
attempting to apply these principles to the specific facts of the case. The
rule recognizes that an expert on the stand may give a dissertation or
exposition of principles relevant to the case, leaving the trier of fact to apply them to the facts. Proposed
expert testimony that seeks to set out relevant principles, methods or
techniques without offering an opinion about how they should be applied to a
particular array of facts will be, in most instances, more eligible for
admission under section (c) than case specific opinion testimony. There are,
however, scientific or specialized methods or techniques applied at a level of
considerable operational detail that have acquired sufficient general
acceptance to merit admission under section (c).
The
concept of general acceptance as used in section (c) is intended to replace the
novel vs. non-novel dichotomy that has served as a central analytical tool in
Utah’s Rule 702 jurisprudence. The failure to show general acceptance meriting
admission under section (c) does not mean the evidence is inadmissible, only
that the threshold showing for reliability under section (b) must be shown by
other means.
Section (b) adopts the three general categories of inquiry for expert testimony contained in the federal rule. Unlike the federal rule, however, the Utah rule notes that the proponent of the testimony is required to make only a “threshold” showing. That “threshold” requires only a basic foundational showing of indicia of reliability for the testimony to be admissible, not that the opinion is indisputably correct. When a trial court, applying this amendment, rules that an expert's testimony is reliable, this does not necessarily mean that contradictory expert testimony is unreliable. The amendment is broad enough to permit testimony that is the product of competing principles or methods in the same field of expertise. Contrary and inconsistent opinions may simultaneously meet the threshold; it is for the factfinder to reconcile - or choose between - the different opinions. As such, this amendment is not intended to provide an excuse for an automatic challenge to the testimony of every expert, and it is not contemplated that evidentiary hearings will be routinely required in order for the trial judge to fulfill his role as a rationally skeptical gatekeeper. In the typical case, admissibility under the rule may be determined based on affidavits, expert reports prepared pursuant to Utah R.Civ.P. 26, deposition testimony and memoranda of counsel.