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Federal rule of Evidence 702 has grabbed all the headlines. Rule 702 is the statute that played such a prominent role in the Supreme Court’s trilogy of cases on expert testimony, Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579 (1993), General Electric Co. v. Joiner, 522 U.S. 136 (1997), and, finally, Kumho Tire Co. Ltd. v. Carmichael, 526 U.S. 137 (1999). In Daubert, the court looked to Rule 702 to formulate a new test for the admissibility of purportedly scientific testimony. The court focused on the expression “scientific . . . knowledge” in Rule 702. Justice Harry Blackmun initially construed the term “knowledge” as imposing a reliability requirement; the testimony must amount to “knowledge,” rather than speculation. The justice adopted a methodological definition of the term “scientific.” For testimony resting on a theory to be admissible as “scientific . . . knowledge,” the proponent must demonstrate that the theory had been validated by sound scientific methodology. The justice listed several factors such as error rate and peer review that the trial judge may consider. The court revisits Rule 702 in ‘Joiner’ The court revisited Rule 702 in Joiner. There the court concluded that the trial judge has discretion in applying the Daubert factors to decide whether the proponent’s evidence is reliable “scientific . . . knowledge.” Finally, in Kumho, the court extended Rule 702′s reliability requirement to all species of expert testimony. Justice Stephen Breyer acknowledged that the statute is worded in the alternative-”scientific, technical or other specialized knowledge.” However, he emphasized that, whichever category of expertise the testimony relates to, the testimony must amount to “knowledge” to be admissible. The justice conceded that some of the factors relevant to the evaluation of scientific testimony are inapplicable to nonscientific expertise. However, he asserted that “we can neither rule out, nor rule in, for all cases and for all time the applicability of the factors mentioned in Daubert, nor can we now do so for subsets of cases categorized by category of expert.” Although Daubert, Joiner and Kumho spotlighted Rule 702, the Daubert court noted that other federal rule provisions can come into play. The court specifically mentioned Rule 703. As amended, that statute reads: “The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted. Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert’s opinion substantially outweighs their prejudicial effect.” Since, like Rule 702, Rule 703 is also a statute, the proponent’s compliance with Rule 703 is just as essential as satisfaction of Rule 702. Moreover, Rule 703 is beset by at least as many troublesome splits of authority as Rule 702. What is the boundary between 702 and 703? The intent of this series of articles is to give the reader an overview of those splits of authority. This part of the article addresses the threshold question of the meaning of “the facts or data in the particular case” in Rule 703. For its part, Rule 702 regulates “scientific, technical or other specialized knowledge.” In contrast, 703 deals with “the facts or data in the particular case.” What is the boundary between the two rules? That boundary determines the scope of Rule 703. More specifically, it determines which information is governed by 703′s general reasonableness standard as opposed to the more specific validation standard Daubert derived from Rule 702. In the past, many courts have lost sight of that fundamental issue. By way of example, in Sosna v. Binnington, 321 F.3d 742 (8th Cir. 2003), the question presented was whether the expert was permitted to refer to research conducted in the field of surgical sepsis. The research data cited by the expert were not peculiar to the Sosna case; the same data might have been relevant in any number of surgical malpractice cases. Nevertheless, the court turned to Rule 703 rather than 702. The court implicitly assumed that Rule 703 encompasses fairly general scientific-research data. In truth, many published opinions applying Rule 703 indulge the same assumption. However, there is a strong argument that Rule 703 has a much more limited mission-namely, to govern the type or sources of case-specific data that the expert may use as the basis for an opinion. The text of Rule 703 suggests a narrow reading. The first very words of the statute refer to “[t]he facts or data in the particular case.” In Daubert, the court indicated that Rule 702 controlled the question of whether an expert could rely on the epidemiological research cited by the plaintiffs. That research was not peculiar to “the particular case,” that is, Daubert. The data would have been just as relevant in any of the hundreds of other Bendectin cases. The context, rules 702 and 705, strengthen the case for a narrow inter-pretation of Rule 703. Unlike 703, Rule 702 does not contain any limiting language such as “in the particular case.” The contrast in the wording of the two statutes points to the conclusion that while 702 regulates the generalized research data supporting the expert’s theory, 703 controls case-specific information such as whether Mrs. Daubert had consumed Bendectin (as opposed to another anti-nausea drug), and whether her son was born with a particular type of limb defect. Rule 705 makes the narrow interpretation even more attractive. According to Rule 705, “[t]he expert may testify in terms of opinion or inference and give reasons therefor without first testifying to the underlying facts or data.” Like 703, 705 uses the expression, “facts or data.” When a legislature uses an expression in several provisions in the same statutory scheme, the courts normally assume that the expression has the same meaning in each provision. Thus, Rule 705 may furnish useful insight into the interpretation of 703. It would reduce Rule 705 to an absurdity if one were to interpret “facts or data” in that statute as including generalized research data. If that were the case, there would be virtually nothing left to be included in Rule 705′s expression “reasons therefor”; “facts or data” would encompass both the case-specific information and the research data. If “facts or data” is that broad and 705 expressly allows the expert to opine “without first testifying to the underlying facts or data,” Rule 705 would permit direct examinations consisting only of the expert’s opinion and an ipse dixit assertion that the opinion is sound. That testimony would be of little assistance to the trier of fact. In Joiner, as well as in Kumho, the court forcefully insisted that the expert offer more than ipse dixit. Sensibly interpreted, “facts or data” in 705 has to be limited to case-specific information; and if the expression has that limited meaning in 705, it presumably means the same thing in 703. After considering the intrinsic inter-pretive aid of text and context, the court often turns to extrinsic material. In the case of the federal rules such as Rule 703, one of the most important types of extrinsic legislative history material is the relevant advisory committee note. A more skeptical attitude toward committee reports In the past two decades, the Supreme Court has adopted a more skeptical attitude toward extrinsic legislative history such as committee reports. After all, Congress votes only on the statute, not on the committee report; and realistically, we now know that the wording of such reports can be influenced by special-interest groups. However, the courts and commentators agree that the advisory committee notes are entitled to significant weight in construing the federal rules. Scallen, “Interpreting the Federal Rules of Evidence: The Use and Abuse of the Advisory Committee Notes,” 28 Loy. L.A. L. Rev. 1283 (1995). The notes are not only the product of intense study. More importantly, they accompanied the draft rules through every stage of their careful consideration by Congress. The Note to Rule 703 is revealing. It gives a large number of examples of the type of information the rule applies to: “statements by patients and relatives, reports and opinions from nurses, technicians and other doctors, hospital records, and X rays.” All the examples are case-specific information-a patient’s complaint of pain, a nurse’s report of the patient’s temperature or an X-ray showing a fracture. Thus, like the text and context of Rule 703, its legislative history points to the conclusion that the statute governs only the particularized factual data underpinning the expert’s opinion. When an expert testifies at trial, his or her testimony is usually reducible to a syllogism. They vouch for the validity of a general theory or technique-in effect, the major premise. They then cite their minor premise, the case-specific facts they have been asked to evaluate. By applying the major premise to the minor, the expert derives a conclusion, an opinion relevant to the facts of the case. While Rule 702 and Daubert relate to the expert’s major premise, 703 controls the minor premise. That view of the boundary between the two rules helps markedly clarify the scope of Rule 703. However, the dispute over the scope of 703 is by no means the only split of authority in 703 case law. The following two articles in this series will identify and discuss the major controversies swirling around Rule 703. Edward J. Imwinkelried is a professor at the University of California, Davis School of Law, and co-author of Scientific Evidence (3d. ed. 1999).

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