Amended Rule 702 by circuit

Rule 702 tracker

Rule 702 changed on December 1, 2023. This page tracks how each federal court of appeals has applied the amended text since: the rulings, the sentence that matters in each, and a link to every opinion.

Last reviewed October 2, 2026 · 15 appellate rulings tracked · reviewed monthly

What changed on December 1, 2023

The amended rule allows expert testimony only 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.”

Two edits did the work. The preponderance standard is now in the text, so each requirement is the offering party’s burden, decided by the judge. And 702(d) speaks of the opinion reflecting a reliable application, aimed at experts whose conclusions go further than their method supports. The Advisory Committee’s note says many courts had wrongly treated the sufficiency of an expert’s basis, and the application of the method, as questions of weight for the jury. Whether a circuit reads the amendment as raising the bar or as restating it is what this page tracks. For the full treatment, read the guide on what courts exclude under amended Rule 702.

The map at a glance

Stance labels are our reading of the circuit’s rulings, not a holding.

Circuit	Our reading	Rulings	Most recent
First Circuit	Treats it as clarifying existing law	3	ZipBy USA LLC v. ParzychMar 20, 2026
Second Circuit	Treats it as clarifying existing law	1	Rutledge v. Walgreen Co.Jul 13, 2026
Third Circuit	No published appellate ruling yet	0	None yet
Fourth Circuit	Treats it as clarifying existing law	1	O’Connor v. Fairfax Taxi, Inc.Aug 19, 2026
Fifth Circuit	No published appellate ruling yet	0	None yet
Sixth Circuit	Mixed	2	Davis v. Sig Sauer, Inc.Jan 27, 2025
Seventh Circuit	Mixed	1	Gilbert v. Lands’ End, Inc.Oct 23, 2025
Eighth Circuit	Treats it as clarifying existing law	3	United States v. DixsonJul 9, 2026
Ninth Circuit	Treats it as clarifying existing law	1	Engilis v. Monsanto Co.Aug 12, 2025
Tenth Circuit	No published appellate ruling yet	0	None yet
Eleventh Circuit	No published appellate ruling yet	0	None yet
D.C. Circuit	Treats it as clarifying existing law	1	Hargrove v. MedStar Washington Hospital CenterAug 21, 2026
Federal Circuit	Treats it as clarifying existing law	2	Willis Electric Co. v. Polygroup Ltd.Feb 17, 2026

First Circuit

Our reading: Treats it as clarifying existing law. The First Circuit treats the 2023 text as restating the standard it already applied. Two 2024 opinions reviewing pre-amendment rulings said the changes did not affect the analysis, and a 2026 opinion applied the amended preponderance language directly while repeating that the proponent need not prove the expert correct.

Case	Expert	Outcome	What the court said
Rivera Rodríguez v. Hospital San Cristobal, Inc.91 F.4th 59 · Jan 19, 2024	medical standard-of-care expert	Exclusion affirmed	“However, the application of the rule to this case is not affected by the 2023 changes.”The court noted the amendment, said it did not change the result, and affirmed exclusion of a report that identified no national standard of care.
D’Pergo Custom Guitars, Inc. v. Sweetwater Sound, Inc.111 F.4th 125 · Jul 30, 2024	copyright licensing damages expert	Admission affirmed	“But we note that the 2023 amendments do not meaningfully affect our analysis.”Reviewing a ruling made under the prior text, the court said the amendments made no difference and affirmed admission despite questioning the expert's multipliers.
ZipBy USA LLC v. ParzychNo. 24-1586 · Mar 20, 2026	lost-profits damages expert	Admission affirmed	“To admit expert witness testimony, a district court must find that ‘it is more likely than not that’ the proposed testimony meets the admissibility requirements of Federal Rule of Evidence 702.”The court applied the amended preponderance language and the 2023 committee note, and held that reliance on projections rather than actual results went to weight.

In practice. Expect the court to start from the amended text but to rely on its existing Daubert precedent. Disputes framed as competing projections or assumptions have generally been treated as matters for cross-examination, while a report that never identifies a standard or basis has been excluded.

Second Circuit

Our reading: Treats it as clarifying existing law. In its one tracked ruling the Second Circuit described the amendment as correcting a 'hands-off' approach, and also held that a district court can overcorrect. It vacated the exclusion of three general-causation experts because the trial court substituted its own view of the epidemiology, while affirming the exclusion of two others.

Case	Expert	Outcome	What the court said
Rutledge v. Walgreen Co.No. 24-916 · Jul 13, 2026	general-causation epidemiology experts	Exclusion reversed	“This understanding is fully consistent with the 2023 amendments to Rule 702. Those amendments sought to correct the ‘hands-off’ approach to expert testimony that the Rules Committee perceived had been applied by many district courts.”The court read the amendment as requiring a hard look at application, but vacated three exclusions because the district court went beyond gatekeeping into deciding which experts were right.

In practice. Movants can cite Rutledge for the duty to take a hard look at how an accepted method was applied. Opponents can cite it for the limit: the question is whether the opinion is reliable, not whether the judge finds it correct, and testimony consistent with methods actually used in the field should not be excluded on that ground.

Third Circuit

Our reading: No published appellate ruling yet. We found no Third Circuit opinion filed since December 1, 2023 that discusses or applies the amended text; the candidates our searches returned did not mention the amendment. We also could not confirm district-court rulings within this review, so none are listed yet. This is a gap in our coverage, not a finding about the circuit's law.

In practice. Until the court speaks, briefs in this circuit will rely on the rule's text, the 2023 committee note and pre-amendment Third Circuit precedent. Rulings from other circuits on this page may be persuasive but are not binding there.

Fourth Circuit

Our reading: Treats it as clarifying existing law. From a single published ruling, the Fourth Circuit applies the amended text as governing law and pairs it with its pre-amendment precedent, without describing the change as raising the bar. The exclusion it affirmed turned on an opinion that assumed facts the record did not contain.

Case	Expert	Outcome	What the court said
O’Connor v. Fairfax Taxi, Inc.No. 25-1699 · Aug 19, 2026	accident reconstructionist	Exclusion affirmed	“An opinion that supplies through assumption the very facts the record omits is not ‘based on sufficient facts or data,’ Fed. R. Evid. 702(b), and a district court does not abuse its discretion by excluding it.”The court held that the amended rule governed its review and affirmed exclusion, as an alternative ground to untimely disclosure, because the opinion was not based on sufficient facts or data.

In practice. A motion here will likely be judged under the amended text together with circuit precedent such as Sardis v. Overhead Door. The tracked ruling suggests that an opinion filling gaps in the record with assumptions is vulnerable under 702(b); one ruling is thin, so treat this as a starting point.

Fifth Circuit

Our reading: No published appellate ruling yet. We have not yet listed a Fifth Circuit ruling. The one candidate, an August 2025 voting-rights decision affirming the exclusion of an expert under the amended rule, is held back until we can confirm its later history. This is a gap in our coverage, not a finding about the circuit's law.

In practice. Until a ruling is listed, motions here rest on the rule's text, the 2023 committee note and pre-amendment Fifth Circuit precedent. Check the later history of any Fifth Circuit decision relied on.

Sixth Circuit

Our reading: Mixed. The Sixth Circuit recites the amendment and its committee note, and has affirmed exclusion where an accepted method was not reliably applied. In the same breath it continues to quote its precedent that rejection of expert testimony is the exception rather than the rule, and it reversed an exclusion that swept in opinions the experts' method did support.

Case	Expert	Outcome	What the court said
In re Onglyza (Saxagliptin) & Kombiglyze (Saxagliptin & Metformin) Products Liability Litigation93 F.4th 339 · Feb 13, 2024	general-causation medical expert	Exclusion affirmed	“Indeed, Rule 702’s recent amendments, see supra n.5, were drafted to correct some court decisions incorrectly holding ‘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.’”Applying the prior text, the court cited the amendment's purpose and affirmed exclusion because a reliable method, Bradford Hill, was not reliably applied.
Davis v. Sig Sauer, Inc.126 F.4th 1213 · Jan 27, 2025	firearm design and risk-analysis experts	Exclusion reversed	“First, the amendment clarified that the preponderance-of-the-evidence standard applies to Rule 702.”The court described the amendment as clarifying, affirmed exclusion of the experts' causation opinions, and reversed exclusion of their design-defect and alternative-design opinions.

In practice. Both lines of language are live in this circuit, so briefs on either side should expect to meet them. The tracked rulings suggest the court looks opinion by opinion: an expert may be barred on one question, such as the precise cause of an incident, and still testify on others, such as design defect.

Seventh Circuit

Our reading: Mixed. The Seventh Circuit has acknowledged that the amendment treats sufficiency of basis as an admissibility question and that a party saw it as in tension with circuit precedent separating method from the quality of data. It has not resolved that tension; in the tracked ruling it applied the pre-amendment rule because the result was the same either way.

Case	Expert	Outcome	What the court said
Gilbert v. Lands’ End, Inc.No. 23-3162 · Oct 23, 2025	causation expert relying on plaintiff questionnaires	Exclusion affirmed	“Because our conclusion is the same even under Manpower’s more strict formulation of the standard, we will apply the pre-amendment Rule just as the district court did.”The court flagged possible tension between the amendment and its Manpower line of cases, declined to resolve it, and affirmed exclusion under the prior rule.

In practice. Expect litigants to argue over whether older Seventh Circuit statements that data quality goes to weight survive the amendment, since the court has left that open. The tracked ruling suggests that an expert who relies on litigation-generated data without addressing its known problems is exposed even under the older standard.

Eighth Circuit

Our reading: Treats it as clarifying existing law. The Eighth Circuit treats the amendment as emphasis rather than change. It has said the amendments were not intended to change the rule, that courts continue to have the same gatekeeping role, and, for trials held before December 2023, that it applies its prior precedent without deciding whether the amendment would alter the result.

Case	Expert	Outcome	What the court said
Sprafka v. Medical Device Business Services, Inc.139 F.4th 656 · Jun 4, 2025	design-defect engineering expert	Exclusion affirmed	“after Rule 702’s recent amendment courts continue to have a gatekeeping role to assure that evidence admitted in a case is both relevant and reliable.”The court rejected an argument that the district court overstepped under the amended rule and affirmed exclusion of design-defect opinions that lacked reliable failure-rate or comparison data.
Crabar/GBF, Inc. v. Wright142 F.4th 576 · Jun 24, 2025	lost-profits damages expert	Admission affirmed	“The trial occurred in March and April of 2023, prior to the effective date of the 2023 amendments to Rule 702.”The court applied pre-amendment precedent to a 2023 trial, declined to say whether the amendment would change the result, and held that objections to the model's assumptions went to weight.
United States v. DixsonNo. 25-2148 · Jul 9, 2026	law enforcement drug-trafficking expert	Admission affirmed	“As discussed by the district court, nothing in the prior version of the rule or the current version of the rule prohibits qualified experts from offering opinions based on specialized knowledge.”The court summarised the 2023 committee notes, said the amendment to 702(d) was not intended to change the rule, and affirmed admission of experience-based testimony.

In practice. Exclusions here have turned on a missing reliable basis, such as a failure rate with no denominator or comparator. Challenges to a damages model's assumptions have been treated as weight for cross-examination, and experience-based testimony remains admissible after the amendment.

Ninth Circuit

Our reading: Treats it as clarifying existing law. The Ninth Circuit says its precedent long recognized the burden-of-proof principles the amendment clarified. It used the occasion to state that there is no presumption in favor of admission, and that earlier references to a liberal standard should not be read to suggest one.

Case	Expert	Outcome	What the court said
Engilis v. Monsanto Co.No. 23-4201 · Aug 12, 2025	specific-causation oncologist	Exclusion affirmed	“we confirm that a proponent of expert testimony must always establish the admissibility criteria of Rule 702 by a preponderance of the evidence and that there is no presumption in favor of admission.”The court treated the amendment as clarifying existing Ninth Circuit law, rejected any presumption of admissibility, and affirmed exclusion of a differential etiology that did not reliably rule out obesity.

In practice. Proponents should expect to carry the preponderance burden on every element, with the basis set out in the Rule 26 report; the tracked ruling held that explanations first offered on cross-examination could not cure a gap. The court reviewed a pre-amendment ruling and said its decision would be the same under either version.

Tenth Circuit

Our reading: No published appellate ruling yet. We found no Tenth Circuit opinion filed since December 1, 2023 that applies the amended text in deciding an expert's admissibility; the closest hit was a dissent, which we did not count. We also could not confirm district-court rulings within this review, so none are listed yet. This is a gap in our coverage, not a finding about the circuit's law.

In practice. Until the court speaks, motions here will rest on the rule's text, the committee note and pre-amendment Tenth Circuit precedent. Persuasive authority from other circuits on this page may help frame the arguments.

Eleventh Circuit

Our reading: No published appellate ruling yet. We have found no Eleventh Circuit opinion since December 1, 2023 that discusses the amendment. The court has quoted the amended text, including the more-likely-than-not language, while applying its long-standing three-part test without comment, which we do not count as a ruling on the change. This is a gap in our coverage, not a finding about the circuit's law.

In practice. Expect the court to analyze qualification, reliability and helpfulness under its existing framework while quoting the current rule. Persuasive authority from other circuits on this page may help frame the arguments.

D.C. Circuit

Our reading: Treats it as clarifying existing law. The D.C. Circuit says expressly that the amendment confirmed rather than altered its burden-of-proof rule. It declined to decide where the line between admissibility and weight falls, because the parties did not ask it to.

Case	Expert	Outcome	What the court said
Hargrove v. MedStar Washington Hospital CenterNo. 25-7129 · Aug 21, 2026	medical causation expert	Exclusion affirmed	“The amendment therefore confirmed, rather than altered, our existing burden-of-proof rule.”The court treated the amendment as confirming existing law and affirmed exclusion of a permanency opinion given without examining the patient or reviewing recent records.

In practice. The preponderance burden is settled in this circuit and was settled before 2023. The open question the court flagged, where a challenge stops going to admissibility and starts going to weight, remains for future cases, so it is worth briefing on the record of each opinion rather than assuming an answer.

Federal Circuit

Our reading: Treats it as clarifying existing law. The en banc Federal Circuit says the amendment did not substantively change the standard, yet it relied on the committee note to hold that admitting a damages opinion built on an unsupported premise was a failure of gatekeeping. A later panel paired that emphasis with the reminder that judgment calls within a reliable method remain for the jury.

Case	Expert	Outcome	What the court said
EcoFactor, Inc. v. Google LLC137 F.4th 1333 · May 21, 2025	patent damages expert	Admission reversed	“Where, as here, the relevant evidence is contrary to a critical fact upon which the expert relied, the district court fails to fulfill its responsibility as gatekeeper by allowing the expert to testify at trial.”Sitting en banc, the court relied on the amendment's emphasis on gatekeeping, held the per-unit royalty premise was not based on sufficient facts or data, and ordered a new damages trial.
Willis Electric Co. v. Polygroup Ltd.No. 24-2118 · Feb 17, 2026	patent damages expert	Admission affirmed	“Rule 702 was amended in 2023 to clarify that gatekeeping function, emphasizing that courts must exclude expert testimony when the proponent fails to establish the reliability requirements by a preponderance of the evidence.”The court restated the amendment's gatekeeping emphasis but held that objections to modeling choices and license comparability went to weight, and affirmed admission.

In practice. In patent damages, a premise contradicted by the evidence the expert relied on, such as license terms, is the court's question under 702(b). Disagreement over modeling choices or the comparability of licenses has continued to be treated as weight.

Patterns across circuits

Most circuits call it a clarification. The First, Eighth, Ninth, D.C. and Federal Circuits each say in terms that the amendment restated or confirmed existing law, or made no difference to the result. None of the tracked appellate rulings describes it as creating a new standard.
Sufficiency of basis drives exclusions. Most affirmed exclusions turn on 702(b): a premise contradicted by the record (EcoFactor), a cause not ruled out (Engilis), no failure-rate data (Sprafka), assumed facts (O'Connor) or no recent examination (Hargrove). Onglyza is the main application-prong case.
Reversals run both ways. The en banc Federal Circuit reversed an admission in EcoFactor, while the Sixth Circuit in Davis and the Second Circuit in Rutledge reversed exclusions that went further than the experts' methods warranted. The amendment is being read as a mandate to check the foundation, not to choose the more persuasive expert.
Damages models usually survive. Challenges to damages experts' assumptions and projections were treated as weight in ZipBy, D'Pergo, Crabar and Willis. EcoFactor is the exception, and it involved a premise the evidence contradicted rather than a contestable assumption.
Many rulings reviewed the old text. Rivera Rodríguez, D'Pergo, Onglyza, Crabar, Engilis and Gilbert reviewed rulings made before December 2023; most said the amendment would not change the outcome or declined to decide. Squarely post-amendment appellate rulings are only now accumulating.

Change log

October 2, 2026. First version: 15 appellate rulings across 9 circuits.