Utah Bar Journal

This article first discusses the questions of who can be a testifying expert and the appropriate subjects of expert testimony. The 2007 amendment did not change Rule 702 on these issues. These questions are addressed by what is now subsection (a) of Revised Rule 702.

This article then discusses the newly added portions of the rule found in Subparts (b) and (c). These Subparts establish the criteria to be used by the court in admitting expert testimony. To be admissible, subpart (b) requires that the principles and methods underlying the expert’s testimony meet a “threshold showing that they (i) are reliable, (ii) are based upon sufficient facts or data, and (iii) have been reliably applied to the facts of the case.” Utah R. Evid. 702(b). Under subpart (c), any or all of these criteria can be met by showing general acceptance by the relevant expert community.

Revised Utah Rule 702 differs from its federal counterpart in several key ways. It is expressly not an adoption of Federal Rule 702 and federal case law interpreting Federal Rule 702.3 Where appropriate, this Article compares and contrasts the Utah rule and the federal rule. For example, the Utah rule appoints the trial judge as the gatekeeper for expert opinion, as in the federal rule, but the foundational showing required under the Utah rule is only a “threshold showing.” No such qualifier is found in federal rule. Further, since the Utah rule derives from the Utah precedent, this article focuses on Utah cases underlying Revised Utah Rule 702. Within the framework now codified by Revised Rule 702, these cases and the new Advisory Committee Note provide Utah lawyers and judges with guidance for dealing with experts and their opinions.

Rule 702(a): Who Can Be an Expert, and What Are Appropriate Subjects for Expert Testimony?
Subpart (a) of Utah Rule 702 addresses who can be an expert and what are appropriate subjects for expert testimony as follows:

[I]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.

Utah R. Evid. 702(a).

I. Who Can Be an Expert?
As explained in the 2007 Advisory Committee Note: “The fields of knowledge which may be drawn upon are not limited merely to the ‘scientific’ and ‘technical,’ but extend to all ‘specialized’ knowledge. Similarly, the expert is viewed, not in a narrow sense, but as a person qualified by knowledge, skill, experience, training or education.” 2007 Note. This is not to say that the expert’s qualifications are unimportant. As Chief Justice Crockett noted nearly a half century ago:

In view of the importance of the function entrusted to the expert witness, it is of great importance that the court carefully scrutinize his qualifications to guard against being led astray by the pseudo learned or charlatan who may purvey erroneous or too positive opinions without sound foundation.

Webb v. Olin Mathieson Chemical Corp., 9 Utah 2d 275, 342 P. 1094, 1097 (1959).

The Utah Supreme Court explained in Carbaugh v. Asbestos Corp. Ltd. that the Rule 702(a) issue of expert qualifications is not changed by the 2007 amendment to Rule 702, 2007 UT 65, ¶18, n. 4, 167 P.3d 1063 (Aug. 24, 2007).4 In Carbaugh, the Court confirmed its longstanding rejection of a rigid, formalistic approach for evaluating an expert’s qualifications. Specifically, the Carbaugh court denied the argument that a medical expert witness was not qualified to testify because he was not licensed to practice medicine in Utah. Id. at ¶¶ 18-19 (“In many instances, the possession of appropriate Utah [medical license] credentials may be enough to qualify a proposed [medical] expert, but that is not to say that the lack of Utah credentials will automatically disqualify a potential expert witness.…Licensing standards [for physicians] are relevant to expert eligibility under rule 702 of the Utah Rules of Evidence but not determinative of it.”). The Court more broadly considered the expert’s background and expertise and held that the trial court did not err in permitting the expert to testify. Id.

Similarly, the Utah Supreme Court applied this broad-based approach to expert witness qualifications in State v. Kelley. 2000 UT 41, 1P.3d 546.5 In Kelley, the defendant was charged with attempting to rape a mentally disabled woman. The prosecution called an expert to testify about the victim’s mental capabilities and her inability to appraise the nature of a sexual relationship. The supreme court rejected defendant’s argument that the expert was unqualified simply because he was not licensed to diagnose mental retardation. Rather the court broadly considered the expert’s special education degree, his 27 years of work experience in the general area of his testimony, his specific work with persons with the same level of mental disability as the victim, his specific work with the victim, and his specific knowledge of the victim’s level of understanding. Id. at 549-50.

Likewise, the Utah Supreme Court applied such a broad-based analysis of expert qualifications in Patey v. Lainhart, 1999 UT 31, 977 P.3d 1193.6 In that case, the plaintiff in an automobile accident case called his treating dentist, a general dental practitioner, to testify about endodontic treatments the plaintiff had received. The defendant objected, claiming that since the witness was not an endodontist he was unqualified to testify. The supreme court disagreed, stating that “[a] person may be qualified to testify as an expert by virtue of experience and training; formal education is not necessarily required.” Id. at 1196. The court added that the doctor demonstrated expertise “in general dentistry and endodontics,” that “one-fourth of his dental education related to endodontics, that he had maintained an ongoing educational study of both general dentistry and endodontics by taking post-graduate courses,” that he attended continuing medical education seminars, and that part of his medical practice involved endodontics. Id. at 1197. Finally, the Court noted the expert’s experience in treating the plaintiff for most of her life. Id.

In Carbaugh, Kelley and Patey, the supreme court found that notwithstanding the absence of specific professional licensing, the witnesses had a wealth of experience, knowledge, skill, and both formal and informal education to qualify them as credible authorities on the areas of which they testified. This may not always be the case. In the absence of formal education or licensing, a court should closely scrutinize the opinion offered, as well as the complete history of experience, training, skills, and education the expert possesses. It may also be useful to focus on the particular opinion such an expert is proffering, that is, the “work at hand.” See 2007 Note. For example, while the expert in Kelley was found qualified to testify about the mental capabilities of the disabled rape victim, he might not have been qualified to further testify about the appropriate psychotropic drugs needed to treat her as a result of the crime.

II. What Are Appropriate Subjects for Expert Testimony?
The rule governing who can be an expert necessarily reads in broad terms. This is because there can be no telling what special knowledge might be helpful to the trier of fact. In the 1992 film My Cousin Vinny, whether a ’64 Buick Skylark or a ’63 Pontiac Tempest had positraction and whether they both came in metallic mint green paint were useful facts for the fact finder to know and this specialized knowledge was supplied by an expert. However, the more limiting language of Rule 702(a) is that expert testimony must be about something that will “assist the trier of fact to understand the evidence or to determine a fact in issue.” Utah R. Evid. 702(a).

The court can properly weed out unhelpful and confusing testimony by first focusing on the particular proposition the expert testimony is offered to support. If the testimony does not address an element of a claim or defense at issue or establish a relevant fact, it falls outside the scope of the rule. In this vein, some part of the proffered testimony might be admitted while other parts are excluded as being of no assistance to the fact finder.

The Utah Supreme Court made this point in State v. Holm, 2006 UT 31, ¶¶88-90, 137 P.3d 726. In a prosecution for bigamy and sexual contact with a minor, the defendant attempted to introduce expert testimony on the history of polygamy in Utah, and on the social health of polygamous communities. The defense sought to rebut the notion that polygamous communities are rife with abuse and victimize children. The court held, however, that this testimony would not aid the trier of fact because it did not focus on the issues to be determined by the jury:

Historical context and evidence as to the social health of polygamous communities have no bearing on the factual predicate for a bigamy or unlawful sexual conduct prosecution. The questions put to the jury were, in fact, only tangentially related to the broader concerns of history and social health. The jury was charged with the task of determining whether Holm purported to marry or cohabited with Stubbs while knowing he already had a wife, whether Holm engaged in sexual activity with Stubbs when she was sixteen or seventeen, and whether Holm is ten years her senior. Holm’s proffered testimony as to the history and social health of polygamous communities, which spans nearly thirty pages of transcript, would not have aided the jury in determining the questions before it and would more likely have distracted and confused the jury.

Id.

The United States District Court in Utah provides another example in Milne v. USA Cycling, Inc., 489 F. Supp. 2d 1283 (D. Utah 2007).7 In Milne, the plaintiffs were injured in a bicycle race and alleged that the race organizers were grossly negligent in how they set up the race. In opposition to a motion for summary judgment, the plaintiffs offered the testimony of an expert in bicycle safety and bicycle law enforcement. However, the witness was not expert on the standards of care for organizing bicycle races and his testimony did not establish specific standards of care for bike race organization. Judge Stewart excluded his testimony because it did not address the relevant standard of care and thus ultimately would be unhelpful to the trier of fact. See id. at 1286.

Rule 702(b) and (c): What “Threshold Showing” Must Be Made to Admit an Expert’s Opinions?
Subparts (b) and (c) of Utah Rule 702 address the three-part “threshold showing” requirements of (i) reliable principles and methods, (ii) sufficiency of factual basis, and (iii) reliable application:

(b) Scientific, technical, or other specialized knowledge may serve as the basis for expert testimony if the scientific, technical, or other principles or methods underlying the testimony meet a threshold showing that they (i) are reliable, (ii) are based upon sufficient facts or data, and (iii) have been reliably applied to the facts of the case.

(c) The threshold showing required by subparagraph (b) is satisfied if the principles or methods on which such knowledge is based, including the sufficiency of facts or data and the manner of their application to the facts of the case, are generally accepted by the relevant expert community.

Under Subpart (b), the party offering the evidence must make a “threshold showing” that the principles and methods underlying the opinion are reliable, have been reliably applied to the facts of the case, and are based on sufficient facts or data. Any “plausible” evidence that bears on reliability should be considered.8 Subpart (c) provides an alternative method of meeting one or more of the three “threshold showing” reliability requirements of Subpart (b).

The Subpart (b) “threshold showing” requirement overrules the analysis of State v. Clayton, 646 P.2d 723, 726 (Utah 1982), which held that challenges to reliability of expert testimony go “to the weight to be given the testimony, not to its admissibility.”9 Now, in all circumstances, “Utah’s rule assigns to trial judges a ‘gatekeeper’ responsibility to screen out unreliable expert testimony.” 2007 Note.

Assuming the expert is qualified, most serious challenges to an expert’s opinion will spotlight one or more of the three foundational requirements of Subpart (b). In determining whether the requirements are met, judges will be most often confronted with the guidance from the Advisory Committee Note to employ “rational skepticism.” Since this term is both central to the court’s Rule 702 role and a new concept, this article considers the meaning of this term.

There is paucity in the case law using the term “rational skepticism.” However, the brief uses of it may be of some value. The term is found in Lowenstein v. Newark Board of Education, 171 A.2d 265 (N.J. 1961), where, in the context of reviewing the legality of dismissal of a school board member because of concerns he was a Communist, the New Jersey Supreme Court reasoned:

Appellant is obviously a person of independent mind, not given to forming or expressing opinions without being conscientiously convinced of the soundness and accuracy of the underlying facts. His mental processes appear to be those of the scholar who does not jump to conclusions or accept a popularly held viewpoint without question and study. These answers clearly seem to be intellectually honest ones from a man who is reluctant to talk of matters about which he does not feel thoroughly qualified. We fail to see where they could possibly indicate any preference for Communism or induce a rational skepticism of his professions of loyalty.

Id. at 279.

So, unless there was good reason to believe Mr. Lowenstein was disloyal, it should not have been so concluded. Unless there is good reason to accept an expert’s opinion, it would not be admitted by a rational skeptic.

This view is somewhat tempered by the observation from U.S. ex rel. Foley v. Ragen, 52 F. Supp. 265 (D. Ill. 1943), that: “There is a great difference between rational skepticism and arbitrary disbelief.” Id. at 272.

A third and more pragmatic use of the term comes from State v. Palumbo, 327 A.2d 613 (Me. 1974), in which the Maine Supreme Court reviewed a jury charge in a criminal case. Explaining the presumption of innocence the trial court stated:

“[Y]ou as Jurors are writing on a clean slate, and the person accused of crime comes to Court with what we call the presumption of innocence, which teaches, among other things, an attitude of rational skepticism on your part – why should I believe this, why should I believe this.” Id. at 617.

The query: “Why should I believe this?” comports with the dictionary definition of skepticism as: “1. doubting attitude: an attitude marked by a tendency to doubt what others accept to be true.” See http://www.encarta.ca/dictionary_1861734786_1861734774/nextpage.html.

Hence, while the court should be open-minded to considering any plausible evidence bearing on reliability, the “threshold showing” is not met until enough is proven to give the rational skeptic good reason to believe the opinion. With that perspective at least somewhat elucidated, this article considers the three foundational requirements at issue.

Subparts (b)(i) & (iii): Reliable principles, methods and application. Whether there is a threshold showing that principles or methods underlying the proffered testimony are reliable, and have been reliably applied to the facts of the case.
Subparts (b)(i) & (iii) require a threshold showing that the expert testimony is based upon reliable principles and methods, and that they have been reliably applied to the facts of the case. This mandate reflects the reliability standards previously developed in Utah Rule 702 jurisprudence. While Revised Rule 702(b) does not adopt the previous Rimmasch test that was formerly applied for novel or newly discovered principles, prior Rule 702 cases for guidance in application of Subpart (b)’s requirements on “reliability.” The following case excerpts serve as a guide:

State v. Rimmasch, 775 P.2d 388 (Utah 1989):

[T]he trial court should carefully explore each logical link in the chain that leads to the expert testimony given in court and determine its reliability. Only with such information can the overall decision on admissibility be made intelligently. In the absence of such a showing by the proponent of the evidence and a determination by the court as to its threshold reliability, the evidence is inadmissible.

Id. at 403.

State v. Butterfield, 2001 UT 59, 27 P.3d 1133 (Utah 2001):

[A] foundational showing [of reliability] must explore such questions as the correctness of the scientific principles underlying the testimony, the accuracy and reliability of the techniques utilized in applying the principles to the subject matter before the court and in reaching the conclusion expressed in the opinion, and the qualifications of those actually gathering the data and analyzing it.…In the absence of such a showing by the proponent of the evidence and a determination by the [trial] court as to its threshold reliability, the evidence is inadmissible.

Id. ¶29.

‘[P]ublished articles and books may…be used as evidence supporting the correctness of the general scientific principles and the accuracy and reliability of the methods utilized.’ Id. ¶32 n.4

Simply put, when applying Subpart (b)’s “reliability” requirement, a court should analyze all evidence bearing on whether the methods and principles underlying the proffered opinion would make sense to a reasonable juror. At the conclusion of this analysis, if the court finds that the methodology is illogical, or yields an absurd result, then the court should exclude the evidence.

With expert evidence that is not generally accepted in the relevant expert community, the bar for a threshold showing is higher. In State v. Crosby, 927 P.2d 638 (Utah 1996), the defendant challenged the trial court’s exclusion of testimony on polygraph results. During an evidentiary hearing on admissibility, neither proffered expert could detail any recent study that showed the reliability of polygraph examinations had recently increased. The court affirmed exclusion of the polygraph evidence, implying that building the requisite foundation for expert testimony based on a disputed methodology would be greater:

Given the paucity of information in the record before us, we cannot say that the trial court abused its discretion in refusing to admit the polygraph results. While we would be willing to reexamine this issue, we note that a future proponent of polygraph evidence should make a detailed foundational showing, specifically demonstrating how research or recent developments in the field have made polygraph evidence more reliable. The record in this case fails to meet this burden.

Id. at 643 (emphasis added).
The Supreme Court in Crosby noted that, in contrast to the federal standard in Daubert, the Utah standard in Rimmasch “provides a detailed and rigorous outline for trial courts to follow when making determinations concerning the admissibility of scientific evidence.” Id. at 642. While Revised Rule 702(b) does not adopt the three-part Rimmasch test as articulated in Crosby and other Utah cases, its three-pronged reliability analysis is consistent with the general approach in determining reliability as illustrated in cases applying the Rimmasch test. Therefore, Subpart (b) requires a rigorous, logical analysis of all plausible evidence that supports an opinion’s reliability. The Advisory Committee note states:

Utah’s rule assigns to trial judges a “gatekeeper” responsibility to screen out unreliable expert testimony. In performing their gatekeeper function, trial judges should confront proposed expert testimony with rational skepticism. This degree of scrutiny is not so rigorous as to be satisfied only by scientific or other specialized principles or methods that are free of controversy or that meet any fixed set of criteria fashioned to test reliability. The rational skeptic is receptive to any plausible evidence that may bear on reliability.

What type of evidence will merit the trial court’s consideration when assessing reliability? This is indeed a gray area. Guidelines set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), such as evidence of whether the methodology can be tested, whether it has been subject to publication in a peer-reviewed journal, and evidence of rate of error or use of control groups all seem to merit a court’s consideration when assessing reliability. But what of “lesser” indicia of reliability, such as discussion in a non peer-reviewed magazine? Or a methodology that was once demonstrated on a television show? The Advisory Committee Note once again provides guidance:

That “threshold” requires only a basic foundational showing of indicia of reliability for the testimony to be admissible, not that the opinion is indisputably correct. When a trial court, applying this amendment, rules that an expert’s testimony is reliable, this does not necessarily mean that contradictory expert testimony is unreliable. The amendment is broad enough to permit testimony that is the product of competing principles or methods in the same field of expertise. Contrary and inconsistent opinions may simultaneously meet the threshold; it is for the factfinder to reconcile – or choose between – the different opinions.

Often, conflicting expert testimony will involve at least one opinion which is the subject of debate in the relevant expert community. The Advisory Committee Note seems to include room for such evidence to nonetheless be admitted. Following this guideline, the court should consider “any plausible evidence that may bear on reliability.” 2007 Note. Specifically, the Note explains:

That “threshold” requires only a basic foundational showing of indicia of reliability for the testimony to be admissible, not that the opinion is indisputably correct. When a trial court, applying this amendment, rules that an expert’s testimony is reliable, this does not necessarily mean that contradictory expert testimony is unreliable. The amendment is broad enough to permit testimony that is the product of competing principles or methods in the same field of expertise. Contrary and inconsistent opinions may simultaneously meet the threshold; it is for the factfinder to reconcile – or choose between – the different opinions.

However, while considered, all such evidence should be rigorously scrutinized to ensure that it logically supports the ultimate opinion offered.

Subpart (b)(ii): Sufficient facts or data.
Revised Rule 702(b) requires the trial court to consider whether the expert’s testimony is “based upon sufficient facts or data.” This analysis is usually dependent on the particular issue being considered. For example, medical experts commonly rely on examination of a single patient to opine about that patient’s condition. On the other hand, a public opinion poll will not be reliable if the sample size is too small. Likewise appraisal testimony that is based upon comparable sales may not have a sufficient foundation if not enough comparable sales are available.

Subpart (c): Application of general acceptance for a “threshold showing.”
Subpart (c) of Revised Rule 702 allows the proponent of expert testimony to satisfy the requirements of Subparts (b)(i), (b)(ii) and/or (b)(iii) by showing general acceptance “by the relevant expert community.” This Subpart “retains limited features of the traditional Frye test for expert testimony.” 2007 Note Subpart (c) was designed to replace the former Clayton analysis for non-novel expert testimony. The Advisory Committee Note explains: “The concept of general acceptance as used in section (c) is intended to replace the novel vs. non-novel dichotomy that has served as a central analytical tool in Utah’s Rule 702 jurisprudence.” Id.

Thus, a proponent can meet one or more parts of the three-pronged test by showing general acceptance. For example, in the case of an accounting expert whose testimony on damages may reflect a potential calculation error, the evidence may show general acceptance of (a) the principles and methods of the accountant to calculate damages, and (b) the sufficiency of the facts or data used by the accountant in his or her analysis. But there may not be general acceptance of the application to the facts of the case, when there are questions raised about how the calculations are made. In such a case, a threshold showing of reliable application must then be made under Rule 702(b)(iii).

Put differently, any of the three reliability tests of Subpart (b) may be met by a showing of general acceptance. Failure to show general acceptance does not automatically result in exclusion of testimony. As the Advisory Committee Note explains: “The failure to show general acceptance meriting admission under section (c) does not mean the evidence is inadmissible, only that the threshold showing for reliability under section (b) must be shown by other means.” Id.

Admission under subsection (c) will implicitly represent that the admitted testimony is sufficiently reliable and has adequate foundation under subsection (b). A procedure or test may be so generally accepted that is can be admitted based upon judicial notice. The Utah Supreme Court illustrates this point in State v. Butterfield, 2001 UT 59, 27 P.3d 1133 (Utah 2001). In Butterfield, the court found judicial notice of the reliability of DNA testing appropriate: “In view of the decisional law from other jurisdictions and the overwhelming endorsement by the relevant scientific and forensic literature, we conclude that judicial notice of the inherent reliability of the PCR STR method of DNA testing is appropriate.” Id. ¶35. In Butterfield, both the scientific and legal communities praised the reliability of PCR STR DNA testing.

But what of those instances where, say, a ¾ majority of literature supports the reliability of a particular methodology? In these cases, the Advisory Committee Note once again provides guidance:

The rule recognizes that an expert on the stand may give a dissertation or exposition of principles relevant to the case, leaving the trier of fact to apply them to the facts. Proposed expert testimony that seeks to set out relevant principles, methods or techniques without offering an opinion about how they should be applied to a particular array of facts will be, in most instances, more eligible for admission under section (c) than case specific opinion testimony. There are, however, scientific or specialized methods or techniques applied at a level of considerable operational detail that have acquired sufficient general acceptance to merit admission under section (c).

The more particularized the testimony, the less likely it should be admitted under subsection (c). The more generalized the testimony, the more likely that these general principles enjoy general acceptance in the relevant expert community. As such, expert testimony that qualifies for admission under subsection (c) should enjoy general acceptance among either relevant expert authorities in the field, or among courts that have considered its admissibility as applied to substantively similar facts. Acceptance of evidence under this subsection implicitly declares that the three-prong standards regarding reliable methodology, sufficient foundation, and reliable application have all been met.

Does analysis under Rule 403 remain necessary?
The final prong of admissibility under the former Rule 702 under Rimmasch required a balancing test under Utah R. Evid. 403 to determine whether the proffered evidence’s probative value outweighed its potential for unfair prejudice. Though this balancing test is not explicitly referenced in the text of the Revised Rule 702, the probative/prejudicial analysis will probably be included in some degree with the court’s initial query under Revised Rule 702(a). Testimony whose danger of unfair prejudice outweighs its probative value will likely never be helpful to the trier of fact, and thus would likely be excluded at the outset under subsection (a). As a practice pointer, however, analysis under Rule 403 should always be either included in a 702 challenge, or raised as its own independent basis for challenging the admissibility of expert testimony.

Checklist of Issues to Consider in Admission of Expert Testimony:
In summary, the following is a checklist of issues to consider when seeking to admit expert testimony under Revised Rule 702:

• Does the proposed testimony consist of “scientific, technical, or other specialized knowledge”?
• What is the “work at hand”?
• Will the proposed expert testimony “assist the trier of fact”?
• Is the expert witness qualified by knowledge, skill, experience, training, or education?
• Do the principles and methods underlying the testimony meet a threshold showing of reliability? (This can be met by showing general acceptance.)
• Do the principles and methods underlying the testimony meet a threshold showing that they are based upon sufficient facts or data? (This can be met by showing general acceptance.)
• Do the principles and methods underlying the testimony meet a threshold showing that they have been reliably applied to the facts of the case? (This can be met by showing general acceptance.)

In conclusion, Revised Rule 702 requires the trial court judge to act as a gatekeeper in evaluating all expert testimony. Imposition of this requirement is not intended to prevent competing expert points of view from going to a jury, nor is it designed to take away the jury’s ultimate role as finder of fact. But it is designed to impose a “threshold showing” of reliability before consideration by the jury.

1. Mr. Lund is the chair of the Utah Supreme Court’s Evidence Advisory Committee, which worked with the Utah Supreme Court on the 2007 amendment of Rule 702. Mr. Kelly served as chair of the subcommittee that analyzed Rule 702 issues. This article is based, in part, on a presentation Mr. Lund and Mr. Kelly made on these issues at the Utah Judicial Conference in September 2007. This article reflects the opinions of the authors, and not of the Advisory Committee.

2. See Utah R. Evid. 702 Advisory Committee Note (2007) (hereinafter “2007 Note”). By adopting a gatekeeper requirement for all expert testimony, Revised Rule 702 overrules cases holding that challenges to reliability of expert testimony go weight, rather than admissibility. Examples of cases whose analysis is overruled on this issue are State v. Clayton, 646 P.2d 723, 726 (Utah 1982), and later cases to the extent that they adopted the Clayton standard for admissibility, such as State v. Kelley, 2000 UT 41, 1 P.3d 546, and Green v. Louder, 2001 UT 62, ¶¶ 27-29, 29 P.3d 638. (As discussed in notes 5 & 6 below, such cases are not overruled on the issue of expert qualifications under Revised Rule 702(a).)

3. Several years before adopting Revised Rule 702, the Utah Supreme Court expressly rejected adoption of the December 1, 2000 amendment to Federal Rule 702. See Order of Aug. 15, 2001, In re Proposed Amendments to Rules 103, 404, 701, 702, 703, 803 and 902 of the Utah Rules of Evidence, No. 20010570-SC. The Evidence Advisory Committee was split in its recommendations as to whether Utah should have adopted the federal counterpart to Rule 702: Some on the committee advocated adoption of Federal Rule 702 as the Utah rule, while others opposed adoption of the federal rule. Issues involving revision of Utah Rule 702 received wide commentary from members of the Utah State Bar, which commentary was carefully considered by the Utah Supreme Court prior to adopting the current rule.

4. The Carbaugh court explained: “A substantially revised [11/1/07] version of Utah Rule of Evidence 702 is currently pending [as of August 2007] before this court. If adopted, it will not alter the application of the issues raised in this appeal.” Id. ¶ 18, n.4.

5. Revised Rule 702 overrules Kelley insofar as it adopts the rejected novel/non-novel dichotomy and the Clayton standard for admitting expert testimony. See 2007 Note. But Revised Rule 702 does not change the analysis of expert qualifications found in Rule 702(a). See Carbaugh, 2007 UT 65, ¶ 18, n.4.

6. Revised Rule 702 overrules Patey insofar as it adopts the rejected Clayton standard for admitting expert testimony. See 2007 Note. But Revised Rule 702 does not change the analysis of expert qualifications found in Rule 702(a). See Carbaugh, 2007 UT 65, ¶ 18, n.4.

7. The 2007 Utah Advisory Committee note to Revised Rule 702 cites Daubert for the directive in focusing on the “work at hand.” Cases applying Daubert to the Fed. R. Civ. P. 702 should therefore be helpful in addressing this initial inquiry as to whether the proffered testimony aids the trier of fact.

8. The Utah Supreme Court recently discussed the meaning of plausible:

“Plausible” entered the English language from the Latin verb “plaudere,” to applaud. Although the primary meaning of the word has evolved to mean likely or reasonable to a degree falling somewhat short of certainty, vestiges of its root live on in its connotation. In other words, to earn the designation of plausible, a notion, explanation, or interpretation must impart confidence in its credibility sufficient to merit our applause. A standing ovation is not required, a discreet collision of the palms will do, but there must be reason to applaud.

Saleh v. Farmers Ins. Exchange, 2006 UT 20, ¶ 16, 133 P.3d 428, 433.

9. The following cases are arguably overruled to the extent that they adopted the “weight, not admissibility” analysis of Clayton (but they are not necessarily overruled as to other expert testimony issues): State v. Kelley, 2000 UT 41, 1 P.3d 546; State v. Adams, 2000 UT 42, ¶ 16, 5 P.3d 642; Green v. Louder, 2001 UT 62, ¶¶ 27-29, 29 P.3d 638; Campbell v. State Farm Mut. Auto. Ins. Co., 2001 UT 89, ¶¶ 84-92, 65 P.3d 1134 (also overruled on other grounds in State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408 (2003)); State v. Schultz, 2002 UT App 366, ¶¶ 21-45, 58 P.3d 879; and Balderas v. Starks, 2006 UT App 218, ¶¶ 26-32 , 138 P.3d 75. As discussed below, the analysis of Subpart (c) of Revised Rule 702 applies a general acceptance test, which may apply in circumstances such as those in which the Clayton analysis was formerly applied.