Expert Testimony is Not a “Jury Call”: Amicus Briefs Explain Court’s Role as Gatekeeper

Amended Federal Rule of Evidence 702 sets the standards that trial courts must follow to meet their “gatekeeping” requirements for expert evidence admissibility, as explained by recent amicus briefs.

An LCJ amicus brief to the Michigan Supreme Court highlights the critical role of the courts in protecting the integrity of jury trials through their role as the gatekeepers of expert testimony. If trial courts fail to fulfill their gatekeeping function, potentially unreliable but persuasive expert testimony can come before juries which are ill-equipped to evaluate the credibility of such testimony. LCJ’s amicus brief in Danhoff v. Fahim (here), argues that Michigan Rule of Evidence 702, like FRE 702 and similar rules in other states, provides the standards courts must use to evaluate expert evidence. LCJ’s amicus brief was filed with the Michigan Supreme Court by Mary Massaron of Plunkett Cooney on January 2, 2024.

LCJ’s amicus brief in Harris v. Fed Ex Corporate Services (here) explains that the amendment to FRE 702 informs a proper application of Rule 702 and that the district court erroneously failed to analyze the required reliability factors by ruling that admissibility is a “jury call.” LCJ filed its brief, written by Raffi Melkonian of Wright, Close & Barger, LLP, in the U.S. Court of Appeals for the Fifth Circuit on May 3, 2023.

The Atlantic Legal Foundation’s amicus brief in Carr v. Google (here) explains how the amendment to FRE 702 clarifies that the approach used by the district court is inconsistent with Rule 702’s fundamental reliability requirements. The expert testimony admitted in this case was the basis for a class certification decision in the Northern District of California. The amicus brief before the U.S. Court of Appeals for the Ninth Circuit was prepared by Eric Lasker, of Hollingsworth LLP, and Lawrence Ebner, Atlantic Legal Foundation, and filed on June 13, 2023.

The amendment to Federal Rule of Evidence 702 took effect on December 1, 2023. It is available in LCJ’s document directory. States are now adopting equivalent rule amendments. Updates on state rule amendments can be found on www.dontsaydaubert.com.