LCJ’s Expert Evidence Advocacy Results in Improved Federal Practices and State Rules

Amended Federal Rule of Evidence 702, clarifying the requirements for the admission of expert evidence and the role of judges in serving as gatekeepers for that evidence, is having a significant corrective impact on litigation practices across the country. Amended FRE 702 will continue to have a major impact on the “legal landscape,” said ExxonMobil Executive Counsel Robert Levy. It is changing how cases are tried and is preventing experts without a valid basis for their testimony from getting in front of a jury. Former LCJ President Mills Gallivan, a senior partner with Gallivan, White and Boyd, said that the adoption of the amended federal rule marks a “new era” which will improve consistency in the handling of expert evidence. “It’s a great, great day for the judiciary, for those who litigate, and for civil justice.” [Click here for Mills Gallivan video]

The recently amended rule clarifies rules on expert evidence admissibility in three ways, according to LCJ General Counsel Alex Dahl. [Click here for Dahl video] Guidance to practitioners on utilizing the amended rule in their cases is available in a guide to the amendment by LCJ Expert Evidence Co-Chair Lee Mickus, a partner with Evans Fears Schuttert McNulty Mickus. [Click here for guide] LCJ is engaging in thoughtful amicus activity in support of proper implementation of the amended rule. Recent amicus briefs, in Sprafka v. Medical Device Services and EcoFactor Inc. v. Google LLC, highlight the amended rule’s corrective purpose.

LCJ supports efforts by our members and allies to secure state rule changes similar to the FRE 702 amendment. This work is already seeing results, with the Supreme Courts of Arizona, Kentucky, Louisiana, Michigan, Ohio, and the U.S. Virgin Islands adopting improved standards for expert evidence admissibility. LCJ members and allies are working to secure amendments in many more states.

The importance of these state initiatives is underscored by State Farm Associate General Counsel Peter Martin, who said that the revised federal rule is a major success but only half the battle because many companies have over half their litigation in state courts. Keeping junk science out of the courtroom is as important in state courts as it is in federal courts, according to LCJ Expert Evidence Committee Co-Chair Leah Lorber, Assistant General Counsel with GSK. The clear guidance in FRE 702 on the handling of expert evidence should also be applicable in state courts.

To participate in LCJ’s efforts to improve federal expert evidence practices and to secure improved expert witness standards in state courts, please e-mail LCJ Executive Director Dan Steen at Dsteen@lfcj.com.

To access additional materials on amended FRE 702 and in support of state rule changes, visit LCJ’s document directory. To track the progress of state rule changes, visit www.dontsaydaubert.com.