By: Lloyd N. "Sonny" Shields,
Partner, Irwin Fritchie

Louisiana Code of Evidence Art. 702 is the subject of pre-filed Senate Bill SB16, which (as of this writing) has passed the Senate and awaits House action. The bill, if passed, will bring Louisiana Code of Evidence Art. 702 in parallel with the new Federal Rule of Evidence 702.

On December 1, 2023, two modifications to Federal Rule of Evidence 702 became effective. Those modifications are as follows (changes are noted):

Rule 702. Testimony by Expert Witnesses

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 proponent demonstrates to the court that it is more likely than not that:

(a) 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) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods; and

(d) the expert’s opinion reflects a reliable application of the principles and methods to the facts of the case.

Louisiana’s Code of Evidence had its genesis in the Federal Rules of Evidence, “[a]lthough the Louisiana Code in a number of respects departed from positions taken in the Federal Rules of Evidence and by other states . . . ”¹ Before the December 1^st change, Louisiana Code of Evidence Article 702 tracked Federal Rules of Evidence 702 verbatim.²

The change to the federal rule was preceded by substantial study and comment, most of which agreed on the purpose of the change. As stated in the American Bar Association’s “The Brief” (Winter 2023):

Proposed amendments to Rule 702 aim to clarify the preponderance standard of admissibility of expert testimony, eliminate any ambiguity regarding the court’s role as the gatekeeper of the admissibility of expert testimony, and ensure that only testimony that meets the applicable reliability standards is presented to the jury.

Several states which have an evidentiary rule 702 following the federal rule have initiated efforts to make corresponding changes to the rule. The Arizona Supreme Court issued an order on August 22 changing its Rule 702 to conform with the amended Federal Rule, effective January 1, 2024.³ The Ohio Supreme Court published notice on September 12, 2023, seeking comment on a proposed change to Ohio’s Rule 702.⁴ The Michigan Supreme Court published proposed rule changes on March 22, 2023, which would include bringing Michigan’s expert evidence rule into substantial conformity with the proposed Federal Rule 702.⁵

The crux of the issue was defined by the federal Advisory Committee on Evidence Rules as follows: “[M]any courts have held that the critical questions of the sufficiency of an expert’s basis, and the application of the expert’s methodology, are questions of weight and not admissibility,” and “[t]hese rulings are an incorrect application of Rules 702 and 104(a).”⁶ That same group cited that the rule change “. . . would provide much-needed guidance about the proper standards for admissibility of expert evidence and the reliable application of an expert’s basis and methodology.”⁷

Perhaps the most succinct explanation supporting the proposed amendment of Rule 702 is found in a letter sent by a group of corporate counsel in December 2021 to the committee charged with reviewing the proposed change. Those individuals stated:

The Proposed Amendment would significantly improve trial practice by clarifying that: (1) the proponent of expert testimony bears the burden of establishing its admissibility by a preponderance of the evidence, and (2) an expert shall not assert a degree of confidence in an opinion that is not derived from sufficient facts and reliable methods.

By way of explaining their position, the authors continue:

There are two primary reasons why Rule 702 is widely, but inconsistently, misunderstood. First, the current rule text does not clearly distinguish between the court’s responsibility under Rule 104(a) to decide the preliminary question of whether a witness is qualified and the evidence admissible, and the 104(b) standard that allows the jury to determine what weight to give the evidence after the court has ruled it admissible.⁸

Louisiana discovery civil procedure rules have long followed the federal rules:

In the early 1950’s the Law Institute drafted a statute providing for a deposition and discovery system in Louisiana. This system was modeled almost entirely on Federal Rules 26 through 37. Mechanical changes, rejection of certain federal policies and the addition of well-established Louisiana concepts were, however, necessary. This statute became law in 1952.⁹

In 1974, the Civil Procedure Committee of the Louisiana State Law Institute evidenced an intent to have the discovery articles hew closely to the federal rules:

Since the initial adoption of the federal rules on discovery in 1938, changes in these rules have been made, particularly in 1970. In order to parallel the present federal rules, revisions of Louisiana’s deposition and discovery provisions is needed.¹⁰

Code of Civil Procedure Article 1425(F) makes substantial reference to Code of Evidence articles regarding expert testimony (“Articles 702 through 705 of the Louisiana Code of Evidence”), as well as to Code of Evidence Article 104(A). Paragraph F(2) states:

. . . the Court shall consider the qualifications and methodologies of the proposed witness based upon the provisions of Article 104(A) and 702 through 705 of the Louisiana Code of Evidence.

Federal Rule of Evidence 104 and Louisiana Code of Evidence Article 104 are virtually identical.¹¹

Comment (c) to Louisiana Code of Evidence Article 104 states:

In making the determinations called for by Paragraph A the trial judge should generally apply the preponderance of evidence standard.

The proposed Rule 702 first modification states “[if] the proponent demonstrates to the court that it is more likely than not that . . .”, which is the preponderance of evidence standard.

Code of Civil Procedure Article 1425(F) already places the burden on the trial judge, in the Daubert hearing¹² to state “its findings of fact, conclusions of law, and reasons for judgment,” regarding the expert’s qualifications and employed methodologies. In fact, the stated purpose in that subparagraph for the pretrial hearing is “to determine whether a witness qualifies as an expert or whether the methodologies employed by such witness are reliable under Articles 702 through 705 of the Louisiana Code of Evidence.” It could be argued that in doing so, the trial judge is already required by CCP 1425(F) to express that: “[the] expert’s opinion reflects a reliable of the application of the principles and methods to the facts of the case;” that is, the trial judge is already required to find (or not find) the essence of the revised Rule 702(d).

Under CCP Article 1425(F), the trial judge’s findings of facts, conclusions of law, and reasons for judgment are specifically required to include and address the following:

(a) The elements required to be satisfied for a person to testify under Articles 702 through 705 of the Louisiana Code of Evidence.

(b) The evidence presented at the hearing to satisfy the requirements of Articles 702 through 705 of the Louisiana Code of Evidence at trial.

(c) A decision by the judge as to whether or not a person shall be allowed to testify under Articles 702 through 705 of the Louisiana Code of Evidence at trial.

(d) The reasons of the judge detailing in law and fact why a person shall be allowed or disallowed to testify under Articles 702 through 705 of the Louisiana Code of Evidence.

Insofar as the trial judge is already required to make those determinations (particularly items a, b and d), the new language in the proposed Rule 702(d) will have already been addressed by the court in carrying out its mandated duties.

The changes are suggested to clarify the trial court’s gatekeeper duties, duties which largely already expressly exist in Louisiana procedure, but which need greater distinction between the concepts of admissibility and of reliability of expert testimony.

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¹ Handbook on Louisiana Evidence Law 2022-2023, Force & Ciolino, page xii.

² Appendix B of Force and Ciolino presents an interesting comparison between the two sets of rules Id. at p. 1141.

³ https://www.azcourts.gov/rules/Rule-Amendments-from-Recent-Rules-Agenda-s

⁴  https://www.supremecourt.ohio.gov/ruleamendments/doucments/2024%20Practice%20&%20Procedure%20 Proposals. If the rule is submitted by Ohio’s Supreme Court to Ohio’s General Assembly, it will take effect on July 1, 2024 unless it is withdrawn or both houses vote to reject it.

⁵ https:/www.courts.michigan.gov/rules-administrative-orders-and-jury- instructions/proposed-adopted/Michigan-rules-of-evidence/#adm-2021-10-03-22-2023

⁶ Proposed Committee Note, Preliminary Draft at 309, as cited in “Comment to the Advisory Committee on Evidence Rules” published by the Lawyers for Civil Justice on September 1, 2021. See also, “Memorandum” of the Committee on Rules of Practice and Procedure of the Judicial Conference of the United States at (unnumbered) page 5.

⁷ Id.

⁸ Emphasis in original. https://www.irwinllc.com/assets/htmldocuments/Committee_on_Rules-of_Practice_Procedure_Admin_Office_US_Courts-Proposed_Amendment_to_FRE_702.pdf 

⁹ Louisiana State Law Institute, Code of Civil Procedure (Depositions and Discovery), prepared for Council Meeting, April 5-6, 1974, Howard L’Enfant, reporter, at Page i.

¹⁰ Id.

¹¹ See, Handbook on Louisiana Evidence Law 2022-2023, Force & Ciolino, at page 1142.

¹² The term “Daubert hearing” is used to reference the hearing contemplated by CCP Art. 1425.