By now everyone should be well aware of the amendments to Fed. R. Evid. 702, which became effective in December, 2023.  Last December we wrote a blogpost, “New Fed. R. Evid. 702 − Use This Stuff To Update Your Briefs,” with a collection of useful materials for litigators to prepare to take maximum advantage of the amended rule.  These included relevant excepts from not only the Committee Note explaining the 2023 amendments, but also from the Civil Rules Committee’s “Agenda Books” compiled during the amendment process concerning the widespread “incorrect” interpretations of prior Rule 702 that prompted the amendments.  The blogpost also included decisions addressing the precedential value of this committee material.

Now we have some more good stuff for you.  First, in May we blogged about Sprafka v. Medical Device Business Services, Inc., 2024 WL 1269226 (D. Minn. March 26, 2024).  As we noted, Sprafka was a final judgment and was likely to be appealed.  It has − to the Eighth Circuit, which was one of the most problematic courts under the prior rule.  On July 16, the Lawyers for Civil Justice – one of the organizations that most strongly advocated for the 2023 amendments – filed a thorough and persuasive amicus curiae brief in Sprafka, written by friend-of-the-Blog Lee Mikus.  The brief includes much of what was in our earlier blogpost, and more, and does so in rigorous, formal briefing style, as opposed to my breezier blog presentation.  Here are the relevant argument headings from LCJ’s Sprafka brief:

• The Eighth Circuit Should Clarify That Federal Rule Of Evidence 702 Governs The Admissibility Of Expert Testimony.

• Rule 702, Not Caselaw, Establishes the Admissibility Standard

• Rule 702 Was Amended to Reject the Gatekeeping Characterizations that Plaintiff and the District Court Repeat

• Plaintiff’s Interpretation of the Courts’ Gatekeeping Role Rests on Caselaw That Does Not Comport with Rule 702

• The Rule 702 Factors Are Admissibility Determinations Courts Must Decide

• Rule 702 Does Not Prefer Admission Over Exclusion

• Admitting Opinion Testimony Under Rule 702 Requires an Affirmative Showing that the Rule’s Criteria Are More Likely Than Not Met

A second new, useful compilation is the published article, Eric Lasker & Joshua Leader, “New Federal Rule of Evidence Rule 702:  A Circuit-by-Circuit Guide to Overruled ‘Wayward Caselaw.’”  This article compiles, in circuit-by-circuit fashion, federal Rule 702 decisions from the bad old days that can now be challenged as “incorrect” applications of the Rule, according to the standards of the amended rule.  This reference will be helpful in spotting at a glance whether our opponents are relying on caselaw that is no longer valid (assuming it ever was) after December, 2023.  Or, as the article’s authors summarize its purpose:

While the product of extensive work and analysis, this guide is not exhaustive – the decades of judicial defiance of the Rule’s admissibility requirement would make any such effort unattainable.  And of course, practitioners using this guide must use their own judgment in explaining to courts why the identified decisions should no longer be followed.  But – we hope – the guide provides a quick reference that will help relegate this wayward caselaw to the dustbin of legal history and clear the field for the proper application of Rule 702 moving forward.

Circuit-by-Circuit Guide, at 5.

Finally this article, Erin Sheley, “Courts Must, As Recently Reminded, Follow The Law In Rule 702 Expert Testimony Determinations,” published in the Mealey’s Daubert (don’t say that) Report, contains useful recent Rule 702 case law, and some policy arguments, for helping courts get the amended Rule 702 right this time.