Rule 702: Changes? What Changes?

Rodriguez v. Hosp. San Cristobal, Inc., 2024 U.S. App. LEXIS 1301, 91 F.4th 59; 2024 WL 207717

Much has been said during the run-up to the implementation of the changes in Rule 702 designed to “clarify” rather than to change the rule materially. The new version of Rule 702 went into effect on Dec. 1, 2023. Now we have our first look at how the U.S. circuit courts (at least one of them) might look at the changed rule.

An article by Faegre Drinker Associate Eric Friedmanbrought Rodriguez v. Hosp. San Cristobal, Inc., 2024 U.S. App. LEXIS 1301, 91 F.4th 59; 2024 WL 207717, to my attention. This is not a valuation case nor a financial forensics case but rather a medical malpractice case (Puerto Rico). But it has application for valuation analysts and financial forensic accountants who testify. In this case, as the title of Friedman’s article points out, the U.S. 1st Circuit Court cited the new Rule 702 but then cast it aside and proceeded to follow the old Rule 702 in its explanation of the  medical expert physician’s proposed testimony. The implication in both the case and the Friedman article is that the application of the old rule, i.e., allowing methodology application to the case, might be an issue of weight as opposed to admissibility.

As Friedman noted, however, the misapplication of the new Rule 702 is rooted in dicta2  and thus is not necessary to the conclusion of exclusion of the medical expert, which depended more on the fact that the expert had no evidence or support for the contention that the “standard of care” was not followed. I encourage you to read the Friedman article for a more thorough discussion of the case and the new Rule 702 application.

As noted in the title to Friedman’s article, “old habits die hard,” so stay tuned for the future.

1 Eric Friedman, Esq., "Old Habits Die Hard: First Circuit Cites Newly Amended Language of FRE 702 But Follows Abrogated Precedent Instead," Feb 16, 2024;

2 Dicta (plural of Dictum): a view expressed by a judge in an opinion on a point not necessarily arising from or involved in a case or necessary for determining the rights of the parties involved. (Merriam-Webster Dictionary of Law)