FRE 702 Rule Change Cases Are Coming


The rule changes to FRE 702, which we have covered previously,1 went into effect on Dec. 1, 2023. As expected, case opinions are already noting the new rule and how it impacts a particular case. In this post, we recognize two such cases.

In Doe v. Trs. of Dartmouth Coll.,2 in an opinion issued on Oct. 18, 2023, so before the implementation of the revised FRE 702, the defendants, trustees of Dartmouth College, moved to exclude the testimony of the plaintiff’s, Doe’s, expert witness on lost wages and lost earnings capacity. The court denied the exclusion of the witness.3 In so doing, the court noted that FRE 702 has been revised effective Dec. 1, 2023. The rule has been amended and replaced with "the expert's opinion reflects a reliable application of the principles and methods to the facts of the case." The court then made it clear that “[t]he result here is the same regardless of whether the pre- or post-2023 amendment language is applied.”

In effect, this case applies the new rule test on the reliability and applicability of the testimony of the expert—the facts of the case—and points out that fact. It perhaps affirms that maybe there will not be a great shift in the number of exclusions under the new rules as under the old rules. Will the tendency of appellate courts not to  second guess the trial courts continue, or will the appellate courts tend to get into the issue of reliability and applicability of testimony? Time will tell.

In Julie A. Su v. Reliance Trust Co., 2023 U.S. Dist. LEXIS 226214; 2023 WL 8715627 (Dec. 18, 2023), which was decided after the implementation of the new FRE 702 rule, the Secretary of Labor, Su, argued that the defendant's witnesses should be excluded first because the directors did not disclose these experts under Federal Rule of Civil Procedure 37 and second because the experts’ testimony was duplicative of what their other expert will say. Directors, the defendants, argued that a recent amendment to FRE 702 showed the previous order to be flawed. The court allegedly placed the burden on the directors to show why the witness should be excluded, where the amendment to FRE 702 clearly shows the burden should be placed on the secretary to prove the admissibility of the witness.

In a prior order, the court went through the directors’ arguments as to why the witness should be excluded and found them to fall short of requiring exclusion. Beyond the argument regarding changes to FRE 702, the same previously failing arguments were made. In other words, the court here went out of its way to make the point that the changes to FRE 702 were not so severe as to change the landscape of admissibility or exclusion of a witness.

While these were only two cases commenting on the FRE 702 rule change, they were perhaps a harbinger that the courts were considering the changes and clarifying why their decisions were in accordance with the new rule. Since the new rule was implemented with some consideration that not enough expert witnesses were being excluded, what will be the reaction if the landscape does not materially change?


1 See previous blog post, 'Changes to Rule 702 Federal Rules of Evidence Now Complete.'
2 Doe v. Trs. of Dartmouth Coll., 2023 U.S. Dist. LEXIS 186793; 2023 DNH 131P; __ F.Supp.3d __; 2023 WL 6879237 (Oct. 18, 2023).
3 The court did grant exclusion of a specific issue by the expert witness, but the primary issue of admittance of the witness was allowed.

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