FRE 702 Amendment Powers Two New Amicus Briefs on Expert Evidence Admissibility

The LCJ-supported amendment to FRE 702 is a potent argument for why courts should follow the “gatekeeping” requirements for expert evidence admissibility, as demonstrated by two new amicus briefs.

LCJ’s amicus brief in Harris v. Fed Ex Corporate Services explains why the soon-to-be adopted amendment should inform a proper application of Rule 702 where a district court erroneously failed to analyze the required reliability factors, instead 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 3rd.

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

The Rule 702 amendment, which was approved by the U.S. Supreme Court in April and is now before Congress, is scheduled to take effect on December 1, 2023. It is available in LCJ’s document directory.