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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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 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
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
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
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
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
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
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
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