The rules governing admissibility of opinion testimony in Federal Court changed, and similar changes are looming in Missouri. On December 1, 2023, after nearly seven years of work by the federal judiciary’s Advisory Committee on Evidence Rules, a second amendment to Rule 702 took effect. The new Rule expressly indicates that the proponent of the expert must demonstrate “that it is more likely than not that the proffered testimony meets admissibility requirements.” The accompanying advisory committee note explains that this preponderance of evidence standard applies to all three of the reliability-based requirements reflected in subsections (b), (c), and (d) of Rule 702. Moreover, the rule makes clear that “the court” must decide admissibility employing the rule’s standards.
Bills have made their way through hearing in the Missouri House and Senate that seek to incorporate this updated version of Rule 702 into Missouri’s state evidentiary rules. House Bill No. 263, introduced by Rep. Barry Hovis, and Senate Bill No. 238, introduced by Senator Jamie Burger, propose amending the Missouri Rules of Evidence to align with the federal rule. The need for such an amendment is apparent, as the Missouri Court of Appeals still views the consideration of the admissibility factors within Missouri Rule of Evidence 490.065.2 as “flexible.”
Attorneys at Sandberg Phoenix, including those in the health law practice group, are carefully monitoring the efforts of states to modify their existing rules on expert admissibility. We are also tracking federal court decisions to ensure that judges are applying Rule 702 with precision. These endeavors will allow us to successfully defend any expert challenges that our clients may encounter. For any concerns regarding the admissibility of scientific experts in health law cases, feel free to reach out to members of the firm’s health law team.
