Court of Appeals Adopts Rule 702 of the Federal Rules of Civil Procedure

ByDouglas C. Melcher

On October 20, 2016, the District of Columbia Court of Appeals decided Motorola Inc. v. Murray, No. 14-CV-1350, slip op. (D.C. Oct. 20, 2016) (en banc) in which it considered, sitting en banc, whether to adopt Rule 702 of the Federal Rules of Evidence to govern the admissibility of expert evidence. Slip op. at 2.

By way of background, for decades the local courts of the District of Columbia used the Dyas / Frye test to govern the admissibility of expert evidence. Id. The test continued in use even after a trilogy of decisions by the United States Supreme Court in the 1990s, beginning with its decision in Daubert, which recognized and provided guidance on a new test to govern the admissibility of expert evidence. Id. at 4-12. The new test was derived from Rule 702, which was subsequently amended to reflect guidance provided by the Daubert trilogy. Id. at 12-13.

In Murray, the Court of Appeals decided to abandon the Dyas / Frye test in favor of adopting Rule 702 which currently states as follows:

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:

(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 has reliably applied the principles and methods to the facts of the case.

Fed. R. Evid. 702. The Court of Appeals reasoned that Rule 702 is preferable to the Dyas / Frye test because it has an expanded focus on the reliability of expert evidence. Slip op. at 13-16. It also reasoned that “there are substantial benefits to be gained from adopting a test that is widely used,” such as the opportunity to “learn from the decisions of other courts which apply Rule 702 or its state counterparts.” Id. at 15-16.

The Court of Appeals’ decision to adopt Rule 702 applies to both civil and criminal cases. Id. at 20.

Douglas C. Melcher

I am a licensed attorney with about twenty years of experience in the private practice of law. I focus my practice on advising and representing individuals, small businesses, and non-profits in civil litigation, including trial court proceedings, appeals, administrative hearings, mediation, and arbitration. I have written numerous articles for D.C. Law Blog and other publications, and am the author of Tort Claims and Defenses in the District of Columbia, which is a handbook for lawyers about civil claims for injury to persons, property, reputation, and commercial interests. Please feel free to contact me if you would like to inquire about assistance with a legal matter. I can be reached at dmelcher@melcherlaw.com or 202-427-5753. For further information about my background, click here.