Revised Rule 702’s sharper teeth bared in new case

BVWireIssue #262-1
July 10, 2024

marital dissolution/divorce
expert witness, goodwill, divorce, enterprise goodwill, personal goodwill, calculation of value

In an Illinois case, expert witnesses were excluded from testifying under the revised Rule 702, the federal rule of evidence, that went into effect this past December. The federal district court rejected a “historic safe harbor” from a precedential case because it is no longer applicable under the revised Rule 702. This case involves personal injury, and the excluded experts were the plaintiff’s medical experts and an economist.

Precedent reexamined: The plaintiff’s experts were to testify about her injuries and treatment, but the plaintiff had concealed information from them about her prior medical history. Therefore, the experts did not have “sufficient facts or data.” But, under prior precedent, the experts would have been allowed to testify (assuming they used proper methodology) and get challenged under cross-examination. But that is exactly what the revised Rule 702 was designed to prevent, the court said, so the precedent was no longer applicable. The plaintiff argued that the prior precedent was still “good law,” but the court disagreed. (The precedent was Walker v. Soo Line Railroad Company, 208 F.3d 581 (7th Cir. 2000).)

This ruling illustrates that prior precedent should be reexamined in light of the revised Rule 702. Proper methodologies may no longer be enough to allow the experts to testify—there must also be an adequate factual basis. Experts who were allowed to testify before may find that they now face possible exclusion.

The case is West v. Home Depot U.S.A., Inc., 2024 WL 2845988 (N.D. Ill. June 5, 2024), and a case analysis and full court opinion are on the BVLaw platform.

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