Utah Court Rules – Published for Comment
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Posted: March 19, 2026
URAP026. Filing and serving briefs. Amend. The amendment to Rule 26 is to increase the number of paper briefs filed with the Supreme Court from eight to ten copies to account for the increase in the number of Supreme Court Justices.
I write to oppose the proposed amendment to Utah Rule of Evidence 702(b)(3). This is a substantive expansion of expert testimony. The current rule requires that expert principles and methods be reliably applied to the facts of the case. This proposal would permit expert testimony even when the expert has not applied those principles or methods to the facts, so long as the testimony is said to “assist the factfinder in understanding principles relevant to the case.” This seems to open the door to a whole host of problems.
The amendment is especially troubling in medical malpractice cases, where liability turns on highly specific facts: timing, symptoms, test results, clinical presentation, available information, differential diagnosis, treatment choices, and causation. In that setting, context is everything. A “blind” expert who has not actually analyzed the case can be used to present abstract medical principles through a hypothetical that conveniently mirrors one side’s theory while avoiding the full record.
Other serious problems created by this language:
-It invites an end-run around Rule 702’s core safeguard that expert testimony must be tied to sufficient facts or data and reliably applied to the facts.
-It allows a party to convert contested facts into assumed facts, then build an apparently authoritative opinion on that selective premise.
-It risks turning experts into narrators for one side’s hypothetical rather than witnesses who have done the disciplined work of applying expertise to the actual case.
-It is likely to mislead juries, who may not reliably distinguish between true educational testimony and a disguised opinion on liability.
-It is most dangerous where standard of care and causation depend on granular factual context, as they often do in professional negligence cases.
-It will create more line-drawing disputes, not fewer, over when “educational” testimony crosses into a covert opinion on the facts.
If the Court does not reject the amendment outright, it should at least narrow it substantially. Any amendment should make clear that an expert who has not applied principles or methods to the facts of the case may not directly or indirectly endorse a party’s version of disputed facts, and may not offer hypothetical testimony that functions as a substitute for a case-specific expert opinion.The better course is to reject the amendment and preserve the current rule’s focus on reliable application to the facts. That is the safeguard that keeps expert testimony useful rather than misleading. For these reasons, I respectfully urge the Court not to adopt the proposed amendment to Rule 702(b)(3).
I oppose this amendment. As drafted, it permits expert testimony offering general scientific or technical principles without any case-specific application and no threshold judicial finding that the testimony is actually appropriate. The phrase “offered to assist the factfinder in understanding principles relevant to the case” does no meaningful gatekeeping work beyond URE 401 and the helpfulness requirement of URE 702(a). The rule as written leaves the door open for testimony that sounds authoritative but may create improper inferences. For example, in a trial for arson, an expert could testify generally about how fires spread, how electrical systems can malfunction, and how investigators misread burn patterns, without ever determining whether any of those things happened in that case. The result is that a party can place credentialed scientific testimony before the jury implying a conclusion about the merits without ever having to defend how that science applies to the specific facts of the case. Although designed to assist the factfinder, in practice it would likely trigger the very concerns URE 403 is meant to prevent, e.g., misleading the jury and confusing the issues.