New rule 702 decisions, legislation improve expert evidence standards
LCJ amicus briefs on the proper application of amended Federal Rule of Evidence 702 have helped persuade two more federal circuits to emphasize the importance of judicial gatekeeping and uphold the Rule’s standards for admissibility of expert evidence. Meanwhile, LCJ has filed four new amicus briefs in key jurisdictions and welcomes Oklahoma as the seventh state to amend its state rule to reflect the recent improvements in federal 702.
EcoFactor v. Google LLC
The U.S. Court of Appeals for the Federal Circuit, in an en banc decision in EcoFactor, Inc. v. Google LLC, reversed a decision in the Western District of Texas denying Google’s motion for a new trial on damages. The appellate court’s May 21st decision applied the recently amended FRE 702 and concluded that the plaintiff’s expert’s testimony was unreliable.
LCJ’s amicus brief, prepared by Mark Davies and his colleagues at White & Case, stressed to the Federal Circuit that “the district court and the [Federal Circuit] panel made the very mistakes that motivated enactment of the 2023 Amendment. Both failed to apply Rule 702’s requirement that ‘the court must rule on admissibility.’”
Sprafka v. Medical Device Business Services, Inc.
The U.S. Court of Appeals for the 8th Circuit provided clear guidance on the application of recently amended FRE 702 in Sprafka v. Medical Device Business Services, Inc. (DePuy Orthaepedics, Inc.). The June 4th decision held that the plaintiff expert’s testimony failed the reliability requirements of amended FRE 702 and upheld the district court’s summary judgement. The decision specifically cites the notes of the Advisory Committee on Evidence Rules concerning the amended rule, which emphasize the need for courts to exercise their gatekeeping function.
LCJ’s amicus brief in Sprafka, prepared by Lee Mickus, with Evans Fears Schuttert McNulty and Mickus, brought the 8th Circuit’s attention to several rulings in the Circuit which fail to apply the Rule 702 admissibility standards, demonstrating that many courts fundamentally misunderstand their gatekeeping responsibility.
LCJ’s amicus brief urged the appellate court to correct the continuing misunderstandings of FRE 702 in the 8th Circuit and to affirm the lower court decision. The Eighth Circuit did just that, emphasizing that “after Rule 702’s recent amendment courts continue to have a gatekeeping role to assure that evidence admitted in case is both relevant and reliable.” The district court, despite correctly assessing the proffered opinion testimony using FRE 702’s burden of proof and admissibility criteria, mischaracterized Rule 702 as “favor[ing] admissibility over exclusion.”
LCJ Files Four New Amicus Briefs on Rule 702
LCJ’s efforts to urge correct application of Rule 702 include new amicus briefs filed in four federal circuits.
LCJ’s amicus brief in the NFL Sunday Ticket Litigation in the 9th Circuit Court of Appeals, was written by Jeremy Rosen, Jason Siu, and Emma Wine of Horvitz & Levy.
LCJ’s amicus brief in the Colwell v. Sig Sauer, Inc., in the 2nd Circuit Court of Appeals was written by Lee Mickus, with Evans Fears Schuttert McNulty Mickus.
LCJ’s amicus brief in Lang v. Sig Sauer, Inc. in the 11th Circuit Court of Appeals was prepared by Lee Mickus, with Evans Fears Schuttert McNulty Mickus.
LCJ’s amicus brief in the 6th Circuit case Martin v. Polaris, Inc., was prepared by Mary Massaron and Courtney Lavender, with Plunkett Cooney.
Oklahoma Amends Expert Evidence Standard to Align with FRE 702
Oklahoma is the seventh jurisdiction to adopt the admissibility standards in amended Federal Rule of Evidence 702. The bill was signed by Governor Kevin Stitt on May 27.
The legislation authorizing the rule change was adopted by the House and Senate by wide margins before being sent to Governor Stitt. Oklahoma joins Arizona, Kentucky, Louisiana, Michigan, Ohio, and the U.S. Virgin Islands in adopting amended FRE 702 standards.
Learn more about FRE 702 and LCJ’s efforts to secure federal and state implementation of the rule amendment at LCJ’s website, www.dontsaydaubert.com.
Visit LCJ’s Document Directory for Additional Resources
LCJ’s amicus briefs, including in the NFL Sunday Ticket Litigation, EcoFactor v. Google, Sprafka v. Medical Device Business Services, Colwell v. Sig Sauer, Lang v. Sig Sauer, and Martin v. Polaris, the EcoFactor and Sprafka decisions, and the Oklahoma legislation adopting the state rule, are available in the LCJ website document directory at www.lfcj.com/document-directory.