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Rule 702. Testimony byExperts

 

(a)   Subject to thelimitations 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 of fact tounderstand the evidence or to determine a fact in issue.

 

(b)      Scientific,technical, or other specialized knowledge may serve as the basis for experttestimony only if there is a threshold showing that the principles or methodsthat are underlying in the testimony

 

               (1) arereliable,

 

               (2) arebased upon sufficient facts or data, and

 

               (3) havebeen reliably applied to the facts.

 

(c)      Thethreshold 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 bythe relevant expert community.

 

 

2011 Advisory CommitteeNote. – Thelanguage of this rule has been amended as part of the restyling of the EvidenceRules to make them more easily understood and to make style and terminologyconsistent throughout the rules. These changes are intended to be stylisticonly. There is no intent to change any result in any ruling on evidenceadmissibility.

 

ADVISORYCOMMITTEE NOTE.

 

Apart fromits introductory clause, part (a) of the amended Rule recites verbatim FederalRule 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, alongwith parts (b) and (c). Unlike its predecessor, the amended rule does notincorporate the text of the Federal Rule. Although Utah law foreshadowed inmany respects the developments in federal law that commenced with Daubert, the 2007 amendment preserves and clarifiesdifferences between the Utah and federal approaches to expert testimony.

 

The amendedrule embodies several general considerations. First, the rule is intended to beapplied to all expert testimony. In this respect, the rule follows federal lawas announced in Kumho Tire Co. v. Carmichael, 526U.S. 137 (1999). Next, like its federal counterpart, Utah’s rule assigns totrial judges a “gatekeeper” responsibility to screen out unreliable experttestimony. In performing their gatekeeper function, trial judges shouldconfront proposed expert testimony with rational skepticism. This degree ofscrutiny is not so rigorous as to be satisfied only by scientific or otherspecialized principles or methods that are free of controversy or that meet anyfixed set of criteria fashioned to test reliability. The rational skeptic isreceptive to any plausible evidence that may bear on reliability. She ismindful that several principles, methods or techniques may be suitably reliableto merit admission into evidence for consideration by the trierof fact. The fields of knowledge which may be drawn upon are not limited merelyto the "scientific" and "technical", but extend to all"specialized" knowledge. Similarly, the expert is viewed, not in anarrow sense, but as a person qualified by "knowledge, skill, experience,training or education". Finally, the gatekeepingtrial judge must take care to direct her skepticism to the particularproposition 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 profferedexpert testimony reliably addresses the “work at hand”, and that the foundationof 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 judicialnotice. The nature of the “work at hand” is especially important here. It mightbe important in some cases for an expert to educate the factfinderabout general principles, without attempting to apply these principles to thespecific facts of the case. The rule recognizes that an expert on the stand maygive a dissertation or exposition of principles relevant to the case, leavingthe trier of fact to apply them to the facts.Proposed expert 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).

 

The conceptof general acceptance as used in section (c) is intended to replace the novelvs. non-novel dichotomy that has served as a central analytical tool in Utah’sRule 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 testimony containedin the federal rule. Unlike the federal rule, however, the Utah rule notes thatthe proponent of the testimony is required to make only a “threshold” showing.That “threshold” requires only a basic foundational showing of indicia ofreliability for the testimony to be admissible, not that the opinion isindisputably correct. When a trial court, applying this amendment, rules thatan expert's testimony is reliable, this does not necessarily mean thatcontradictory expert testimony is unreliable. The amendment is broad enough topermit testimony that is the product of competing principles or methods in thesame field of expertise. Contrary and inconsistent opinions may simultaneouslymeet the threshold; it is for the factfinder toreconcile - or choose between - the different opinions. As such, this amendmentis not intended to provide an excuse for an automatic challenge to thetestimony of every expert, and it is not contemplated that evidentiary hearingswill be routinely required in order for the trial judge to fulfill his role asa rationally skeptical gatekeeper. In the typical case, admissibility under therule may be determined based on affidavits, expert reports prepared pursuant toUtah R.Civ.P. 26, deposition testimony and memorandaof counsel.