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Daubert Standards Evidence

Faegre Drinker Biddle & Reath LLP

Can a Treating Physician’s Medical Testimony Be “Lay Opinion”? Divided Sixth Circuit Panel Disagrees on Where to Draw the Line

Federal Rules of Evidence 701 and 702 govern the admissibility of lay and expert opinion testimony, respectively, in federal courts. Rule 701(c) helps paint the line between the two, providing that an opinion “based on...more

Kilpatrick

Eighth Circuit concludes that admissibility at class certification is a “red-herring”

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In Cody v. City of St. Louis, 103 F.4th 523 (8th Cir. 2024), the Eight Circuit maintained its position that admissibility standards do not apply strictly at the class certification stage, thereby solidifying a circuit split...more

Goodwin

Opening the Black Box of Generative AI: Explainability in Bankruptcy Cases

Goodwin on

US courts are issuing guidelines to ensure litigators disclose any use of generative AI in legal proceedings. By now, most of us have heard a story about the misuse of generative AI in the practice of law: the attorney...more

Faegre Drinker Biddle & Reath LLP

California Supreme Court Walks Middle Ground on Warnings Causation but Reaffirms Learned Intermediary Doctrine in Himes

As we reported in April, the United States Court of Appeals for the Ninth Circuit certified a question on California’s Learned Intermediary Doctrine in Himes v. Somatics, LLC, 2022 WL 989469 (9th Cir. Apr. 1, 2022). The...more

Faegre Drinker Biddle & Reath LLP

Northern District of Illinois Holds that Seventh Circuit Precedent is Incompatible with Rule 702 as Amended

In explaining the December 2023 amendments to Federal Rule of Evidence 702, the Advisory Committee called out several ways in which “many courts” had “incorrectly” applied Rule 702 and failed to adequately discharge their...more

Faegre Drinker Biddle & Reath LLP

Expert’s Results-Driven Methodology Leads to Exclusion and Summary Judgment in Paraquat MDL

An expert witness is not supposed to pick a desired result and then reverse engineer inputs and methods that reach that result. As the Ninth Circuit observed 30 years ago, “[c]oming to a firm conclusion first and then doing...more

Ballard Spahr LLP

Blockchain Analysis and Related Expert Testimony Admissible In Criminal Trial

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It is challenging for law enforcement to track down and trace illicit activities conducted through digital currencies. The process can be very time- and resource-intensive. Further, securing charges and arrests, and...more

Faegre Drinker Biddle & Reath LLP

Old Habits Die Hard: First Circuit Cites Newly Amended Language of FRE 702 But Follows Abrogated Precedent Instead

The longer and more frequently a principle is repeated by the courts, the more difficult it can be for courts to acknowledge change. As illustrated by the First Circuit’s opinion in Rodriguez v. Hospital San Cristobal, Inc.,...more

Butler Snow LLP

Rule 104(c)(3): When Justice So Requires

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The following is an article of fiction. The author simply has a well-developed imagination. He should have won summary judgment. And he had – on all claims save one. But one was enough. And now he found himself in...more

Faegre Drinker Biddle & Reath LLP

Something to Celebrate: A Brief Guide to the FRE 702 Amendments

Fun fact: There are 23 holidays that can be celebrated today, December 1st. Some, like Rosa Parks Day and World AIDS Day, are solemn and serious. Others are silly and fun, like National Peppermint Bark Day and National...more

IMS Legal Strategies

Working with Experts Under the New 702 Rule

IMS Legal Strategies on

On June 7, 2022, the Judicial Conference Committee on Rules of Practice and Procedure approved amendments to several of the Federal Rules of Evidence—including Rule 702, which governs the admissibility of expert witness...more

Sheppard Mullin Richter & Hampton LLP

Cyntec Company, Ltd. v. Chilisin Electronics Corp., Chilisin America Ltd. Nos. 2022-1873, (Fed. Cir. October 16, 2023)

This case is primarily about the Daubert standard as applied to expert testimony on damages. The Federal Circuit reversed the Northern District of California’s admission of expert testimony on damages, which relied on...more

Faegre Drinker Biddle & Reath LLP

Experts Who Cannot Articulate a Standard Cannot Opine that a Defendant Failed to Meet the Standard

If you don’t know where a line is, you can’t say whether someone has crossed it. That principle applies in spades to expert witnesses, particularly when their role in the case calls on them to help the jury understand where...more

Faegre Drinker Biddle & Reath LLP

Courts Are Citing the Rule 702 Amendments – And Litigants Should, Too

Though the pending amendments to Federal Rule of Evidence 702 have not taken effect officially yet, courts already have begun to cite them. Early signs indicate the potential that, consistent with the comments by the Advisory...more

Bradley Arant Boult Cummings LLP

Court Allows Expert Testimony Regarding Measured Mile Analysis Comparing Work on Different Projects

Loss of productivity damages are commonly estimated using a “measured mile” analysis, which compares unimpacted construction work to work which has been disrupted to determine the cost impact of the disruption. Such analyses...more

Goldberg Segalla

Turbine Manufacturer’s Motion to Exclude Expert Opinion Testimony Denied

Goldberg Segalla on

U.S.  District Court for the Eastern District of Louisiana Decedent James Grant Gooding was employed at various shipyards in Louisiana between 1970 and 1979. On March 4, 2020, he filed suit against a variety of premises...more

Harris Beach PLLC

National Mass Torts: 2022 Year in Review

Harris Beach PLLC on

Harris Beach attorneys Abbie Eliasberg Fuchs, Bradley M. Wanner and Daniel R. Strecker review and analyze key judicial holdings and legal developments in New York, the federal arena and across the country that have affected...more

IMS Legal Strategies

Working with Experts after Proposed 702 Rule Changes

IMS Legal Strategies on

On June 7, 2022, the Judicial Conference Committee on Rules of Practice and Procedure approved amendments to several of the Federal Rules of Evidence—including Rule 702, which governs the admissibility of expert witness...more

Faegre Drinker Biddle & Reath LLP

Listen Up Class: The Role of Daubert at the Class Certification Stage in the Ninth Circuit

Class certification is the feature fight of any putative class action lawsuit. If granted, it can multiply the stakes of a case several hundred- or thousand-fold. If denied, it can signal the end of the litigation. Because of...more

Faegre Drinker Biddle & Reath LLP

Experts’ Disagreement with Medical Literature Leads to Exclusion

Peer-reviewed literature can be a powerful tool in attacking an opposing expert’s opinions. A solid, on-point article can do more than merely satisfy several of the so-called Daubert factors for assessing reliability – by...more

Goldberg Segalla

Naval Expert’s Testimony Limited on Duty to Warn Issue

Goldberg Segalla on

United States District Court for the Eastern District of Louisiana, September 29, 2022 - The Callen Cortez (“Plaintiff”) matter has been previously reported by the Asbestos Case Tracker. At current issue is the...more

Faegre Drinker Biddle & Reath LLP

Ipse Dixit – It’s Not Just for Analytical Gaps Anymore

There are few legal phrases more fun to say than “ipse dixit.” The phrase is most commonly used in motions to exclude experts who base their opinions on nothing more than their own say so...more

Epstein Becker & Green

One Step Closer to a Revised Standard for the Admissibility of Expert Testimony Under Rule 702

Epstein Becker & Green on

The Judicial Conference of the United States’ Committee on Rules of Practice and Procedure seems poised to advance proposed amendments to Federal Rule of Evidence 702, after the Advisory Committee on Evidence unanimously...more

Faegre Drinker Biddle & Reath LLP

Pathologist Stopped Short of Offering Could-Have, Should-Have Opinions

In personal injury and wrongful death cases, the plaintiff bears the burden of proving medical causation, which almost universally requires testimony from a competent expert.  Some plaintiffs offer testimony from forensic...more

Faegre Drinker Biddle & Reath LLP

It’s not what happened, but why: First Circuit rejects conclusory, unsupported expert opinions

It is not uncommon for an opposing expert to opine that the existence of injury alone implies negligence, nor is it unusual to find that such opinions are supported only by general reliance on “literature” with no discernible...more

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