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
Consumer perception evidence is necessary for plaintiffs to survive summary judgment in a false advertising class action, but vacillating and flawed connections between the evidence and the key question of what a reasonable...more
Federal Rule of Evidence 702 - The admission of expert testimony in federal courts is governed by Rule 702 of the Federal Rules of Evidence. Effective December 1, 2023, Rule 702 was amended to clarify the “preponderance of...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 Committee Notes to the newly implemented amendments to Federal Rule of Evidence 702 make clear that the “[j]udicial gatekeeping” of expert evidence is “essential.” Federal courts in New York have played an important role...more
The amended language of Federal Rule of Evidence 702, which governs the admissibility of expert testimony in federal court, takes effect on December 1, 2023. Even though the Advisory Committee comment stresses that it...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
Rule 702 of the Federal Rules of Evidence governs expert witness testimony in federal courts. On April 24, 2023, the United States Supreme Court approved an amendment to Rule 702 (the “Amendment”), which will go into effect...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
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
United States District Court for the Northern District of California, July 11, 2022 Plaintiff, Frank Shelton, filed an asbestos-related lawsuit alleging his exposure to asbestos from various defendants’ products while he...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
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
Federal Rule of Evidence 702—Testimony by Expert Witnesses—was promulgated in 1975 when Congress first enacted the Federal Rules of Evidence. Original Rule 702 simply stated that “[i]f scientific, technical, or other...more
This week, the Ninth Circuit addresses the district court’s gatekeeping role for expert testimony and examines whether federal courts have jurisdiction over COVID-related suits against nursing homes. ELOSU v. MIDDLEFORK...more
Litigators! Substantive amendments have been proposed to Federal Rule of Evidence 702. The public comment period closes February 16. Rule 702 was last amended substantively in 2000, soon after the concluding chapter in...more
Expert testimony is often critical to establish a claim or defense. Expert testimony is allowed where scientific, technical, or other specialized knowledge will assist the judge or jury to understand the evidence in a case...more
In the face of extraordinary challenges, 2020 has yielded profound developments within the scientific community: from the accelerated development and approval of highly effective and safe vaccines normally years in the making...more
The Advisory Committee on Evidence Rules will continue this fall its ongoing discussions on amendments to Federal Rule of Evidence (FRE) 702. The two possible amendments being considered for FRE 702 include...more
Federal Rule of Evidence 702, which governs the admissibility of expert testimony, was most recently amended in 2000 in response to Daubert and its progeny. In response to concerns about misapplication, the Advisory Committee...more
HVLPO2, LLC v. OXYGEN FROG, LLC - Before Newman, Moore, and Chen. Appeal from the United States District Court for the Northern District of Florida. Summary: It is an abuse of discretion to permit a witness to testify...more
Amateur philosophers, bar flies, and eulogists, among others, are known to wistfully observe that nothing dies so long as it is remembered and discussed. That’s a comforting sentiment when it comes to loved ones and legacies,...more