Print Version
Previous PageFile uploaded: 6/10/2019

Rule 702. ?Testimonyby Experts.

 

(a)   ?? ?Subjectto the limitations in paragraph (b), a witness who is qualified as an expert byknowledge, skill, experience, training, or education may testify in the form ofan opinion or otherwise if the expert?s scientific, technical, or otherspecialized knowledge will help the trier offact to understand the evidence or to determine a fact in issue.

 

(b)      Scientific, technical, or other specialized knowledge may serve as the basisfor expert testimony only if there is a threshold showing that the principlesor methods that are underlying in the testimony 

(b)(1) arereliable,

 

(b)(2) arebased upon sufficient facts or data, and

 

(b)(3) havebeen reliably applied to the facts.

 

(c)      The threshold showing required by paragraph (b) is satisfied if the underlyingprinciples or methods, including the sufficiency of facts or data and themanner of their application to the facts of the case,are generally accepted by the relevant expert community.

 

 

EffectiveNovember 1, 2007

 

 

2011 Advisory Committee Note. ?The language of this rule has been amended as part of therestyling of the Evidence Rules to make them more easily understood and to makestyle and terminology consistent throughout the rules. These changes areintended to be stylistic only. There is no intent to change any result in anyruling on evidence admissibility.

 

Original AdvisoryCommittee Note. ?Apart from its introductoryclause, part (a) of the amended Rule recites verbatim Federal Rule 702 as itappeared before it was amended in 2000 to respond to Daubert v.Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). The 2007 amendmentto the Rule added that introductory clause, along with parts (b) and (c).Unlike its predecessor, the amended rule does not incorporate the text of theFederal Rule. Although Utah law foreshadowed in many respects the developmentsin federal law that commenced with Daubert, the2007 amendment preserves and clarifies differences between the Utah and federalapproaches to expert testimony.

 

Theamended rule embodies several general considerations. First, the rule isintended to be applied to all expert testimony. In this respect, the rulefollows federal law as announced in Kumho TireCo. v. Carmichael, 526 U.S. 137 (1999). Next, like its federal counterpart,Utah?s rule assigns to trial judges a ?gatekeeper? responsibility to screen outunreliable expert testimony. In performing their gatekeeper function, trialjudges should confront proposed expert testimony with rational skepticism. Thisdegree of scrutiny is not so rigorous as to be satisfied only by scientific orother specialized principles or methods that are free of controversy or thatmeet any fixed set of criteria fashioned to test reliability. The rationalskeptic is receptive to any plausible evidence that may bear on reliability.She is mindful that several principles, methods or techniques may be suitablyreliable to merit admission into evidence for consideration by the trier of fact. The fields of knowledge which may bedrawn 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 personqualified by "knowledge, skill, experience, training or education".Finally, the gatekeeping trial judge musttake care to direct her skepticism to the particular proposition that theexpert testimony is offered to support. The Daubert courtcharacterized this task as focusing on the ?work at hand?. The practitionershould equally take care that the proffered expert testimony reliably addressesthe ?work at hand?, and that the foundation of reliability presented for itreflects 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 judicialnotice. The nature of the ?work at hand? is especially important here. It mightbe important in some cases for an expert to educate the factfinder about general principles, withoutattempting to apply these principles to the specific facts of the case. Therule recognizes that an expert on the stand may give a dissertation orexposition of principles relevant to the case, leaving the trier of fact to apply them to the facts. Proposedexpert testimony that seeks to set out relevant principles, methods ortechniques without offering an opinion about how they should be applied to aparticular array of facts will be, in most instances, more eligible foradmission under section (c) than case specific opinion testimony. There are,however, scientific or specialized methods or techniques applied at a level ofconsiderable operational detail that have acquired sufficient generalacceptance to merit admission under section (c).

 

Theconcept of general acceptance as used in section (c) is intended to replace thenovel vs. non-novel dichotomy that has served as a central analytical tool inUtah?s Rule 702 jurisprudence. The failure to show general acceptance meritingadmission under section (c) does not mean the evidence is inadmissible, onlythat the threshold showing for reliability under section (b) must be shown byother means.

 

Section(b) adopts the three general categories of inquiry for expert testimonycontained in the federal rule. Unlike the federal rule, however, the Utah rulenotes that the proponent of the testimony is required to make only a?threshold? showing. That ?threshold? requires only a basic foundationalshowing of indicia of reliability for the testimony to be admissible, not thatthe opinion is indisputably correct. When a trial court, applying thisamendment, rules that an expert's testimony is reliable, this does notnecessarily mean that contradictory expert testimony is unreliable. Theamendment is broad enough to permit testimony that is the product of competingprinciples or methods in the same field of expertise. Contrary and inconsistentopinions may simultaneously meet the threshold; it is for the factfinder to reconcile - or choose between - thedifferent opinions. As such, this amendment is not intended to provide anexcuse for an automatic challenge to the testimony of every expert, and it isnot contemplated that evidentiary hearings will be routinely required in orderfor the trial judge to fulfill his role as a rationally skeptical gatekeeper.In the typical case, admissibility under the rule may be determined based onaffidavits, expert reports prepared pursuant to Utah R.Civ.P.26, deposition testimony and memoranda of counsel.