As a comprehensive, circuit-by-circuit guide for lawyers dealing with the issue of the admissibility of expert testimony, the International Association of Defense Counsel (IADC) has focused the entire summer 2024 issue of its Defense Counsel Journal (DCJ) on federal court decisions no longer authoritative in light of the revisions to Rule 702 of the Federal Rules of Evidence.
Amended in December 2023 for the first time in 23 years, Rule 702 governs the admissibility of expert testimony. The purpose of the amendment was to address what the Advisory Committee on Evidence Rules identified as a pervasive problem of “wayward caselaw” in which federal courts had been “far more lenient about admitting expert testimony than any reasonable reading of the Rule would allow.”
According to IADC members and editors of the summer 2024 DCJ issue Eric Lasker, a partner at Hollingsworth LLP in Washington, D.C., and chair of the IADC’s Rule 702 Sustainability Committee, and Joshua Leader, a partner at Leader Berkon Colao & Silverstein LLP in New York City, “We are thus left, following the amendment to Rule 702, not simply with new Rule language to be applied going forward, but with a large body of case law that has now been emphatically rejected and overruled.”
Lasker and Leader outline the Rule 702 amendments and their impact in their summer 2024 DCJ article “New Federal Rule of Evidence Rule 702: A Circuit-by-Circuit Guide to Overruled
‘Wayward Caselaw.”
Following Lasker and Leader’s introduction, the current issue of the DCJ includes analyses by members of the IADC's Rule 702 Sustainability Committee identifying "wayward cases" in each of the federal circuits that fail to apply the admissibility standards required by amended Rule 702. The authors of these analyses and the circuits they cover are as follows:
• First Circuit by IADC member Marie E. Chafe, a partner, and associates Emily J. Slaman and Daniel Walsh-Rogalski, all at Conn Kavanaugh Rosenthal Peisch & Ford, LLP in Boston, Massachusetts.
• Second Circuit by IADC member Joshua Leader; Leader Berkon Colao & Silverstein LLP associates Melanie L. Brother and Ryan Hersh; and Patrick Fitzmaurice, a director at Maron Marvel Bradley Anderson & Tardy LLC in Philadelphia, Pennsylvania.
• Third Circuit by IADC member Peter J. Pizzi, a partner and founding member of Newark, New Jersey-based Walsh Pizzi O’Reilly Falanga LLP, and Christine P. Clark, an associate at the firm.
• Fourth Circuit by IADC member Amy E. Askew and Louis P. Malick, both principals at Kramon & Graham, PA in Baltimore, Maryland.
• Fifth Circuit by IADC member James W. Shelson, a partner, and associate Nash Gilmore, both at Phelps Dunbar LLP in Jackson, Mississippi, and Garrett Anderson, an associate at Fletcher & Sippel LLC in Jackson, Mississippi.
• Sixth Circuit by IADC members David T. Schaefer and M. Trent Spurlock, both partners, and associate Jasmine R. Chenault-Diehlmann, all at Dinsmore & Shohl in Louisville, Kentucky.
• Seventh Circuit by IADC member William B. Larson, Jr., a partner, and associate Wade A. Bredin, both at MG+M The Law Firm in Wilmington, Delaware.
• Eighth Circuit by IADC member Thomas O. Gaillard, III, managing partner, and associate Alex Gressett, both at Helmsing Leach Herlong Newman & Rouse, in Mobile, Alabama.
• Ninth Circuit by IADC member Mark Behrens, co-chair of the Public Policy Practice Group at Shook Hardy & Bacon, LLP in Washington, D.C., and Andrew Trask, senior counsel at Shook Hardy & Bacon, LLP in Los Angeles, California.
• Tenth Circuit by IADC member Matthew Cairns, senior associate general counsel at Textron Inc. in Providence, Rhode Island, and Katherine Kazarian, a member and House Majority Whip of the Rhode Island General Assembly.
• Eleventh Circuit by IADC member Susan J. Cole, a partner at MG+M The Law Firm in the firm’s Miami office, and former MG+M The Law Firm attorney Loren Y. Yudovich.
• District of Columbia Circuit by IADC member Raymond G. Mullady, Jr., managing director at Berkeley Research Group in Washington, D.C.
• Federal Circuit by IADC member James L. McCrystal, Jr., program director at the National Institute for Trial Advocacy in Cleveland, Ohio.
Frequently and favorably cited by courts and other legal scholarship, the IADC’s DCJ is a forum for topical and scholarly writings on the law, including its development and reform, as well as on the practice of law in general. The articles are intended to serve as a resource to IADC members, trial attorneys, in-house counsel, and the judiciary. The IADC is a 2,500-member, invitation-only, worldwide legal industry organization.
The IADC’s summer 2024 DCJ is available for free and without a subscription via the IADC’s website at https://www.iadclaw.org/documents/?CategoryId=4.
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