Cheryl Bush Sworn in as a Regent of the American College of Trial Lawyers
This brief was authored by:
Chilton Davis Varner,
Ashley C. Parrish,
Brandon R. Keel,
Jeremy M. Bylund, and
LCJ Launches New ‘Don’t Say Daubert’ Web Portal as Advisory Committee on Evidence Rules Solicits Comments on Amendment to FRE 702
New resource page highlights courts’ repeated misapplication of expert evidence admissibility standards, encourages public to submit comments supporting proposed reforms
Arlington, VA – August 9 – Lawyers for Civil Justice (LCJ) – Today, Lawyers for Civil Justice launched a new web portal focused on expert evidence reform, Don’t Say Daubert, highlighting the need for amendment to Federal Rule of Evidence (FRE) 702. The launch of the website comes as the Advisory Committee on Evidence Rules invites public comments on a proposed amendment to FRE 702 that would clarify the widely misunderstood standards for expert evidence admissibility in U.S. federal courts.
“No matter how you pronounce it, the famous Daubert Supreme Court case doesn’t set the standards for expert evidence admissibility – Rule 702 does,” LCJ General Counsel Alex Dahl said. “The amendment process is a perfect time to get rid of the inaccurate slang by saying ‘Rule 702’ when referring to the standards for admitting expert testimony. We strongly encourage members of the bar to submit comments in support of the Advisory Committee’s amendment, which will clarify the standards for expert evidence and bring greater fairness to our civil justice system.”
Since the Supreme Court’s landmark 1993 decision in Daubert v. Merrell Dow Pharmaceuticals, the word "Daubert" has become a de facto shorthand for the standard by which expert evidence is evaluated for admissibility before a federal civil jury. However, it’s Federal FRE 702, not Daubert, that sets the standard that courts must follow in determining whether expert testimony is admissible.
The use of ‘Daubert’ instead of ‘Rule 702’ affects people’s understanding of what standards apply to those motions. While the ‘Daubert standard’ is based on a lineage of case law, the more recent Rule 702 standard is based on the 2000 amendment to the rule approved by the Supreme Court and Congress, codifying it into law. The current proposed amendment to Rule 702 would further clarify that courts are responsible for determining the admissibility of expert opinion testimony, rather than leaving fundamental questions about the basis of expert opinions to a jury. The widespread misunderstanding of expert evidence admissibility standards in both trial and appellate courts within every federal circuit for more than two decades have led to decisions that are patently incompatible with Rule 702.
The web portal outlines the history behind expert evidence admissibility standards, which shows that the all-too-common invocation of “the Daubert standard” should be discarded and replaced with “the Rule 702 standard.”
The Advisory Committee on Evidence Rules opened its six-month public comment period on Friday, August 6. To learn why FRE 702 needs to be amended and how to submit a comment on the proposed rulemaking, visit www.DontSayDaubert.com.
To read the full text of the proposed amendment to FRE 702, click here.
As a result of the Wilsonart case, where PLAC filed an amicus brief recommending adoption of the federal summary judgement rule, the Florida Supreme Court has adopted almost all of the text of Federal Rule of Civil Procedure 56. As described in the court's opinion, the new rule in Florida will help eliminate frivolous lawsuits before they get to trial.
A few highlights about the new rule.
David R. Geiger
In its recent decision in Ford Mtr. Co. v. Montana Eighth Judicial Dist. Ct., the Supreme Court held due process permitted jurisdiction over an out-of-state vehicle manufacturer for product liability claims brought by forum residents following a forum accident, even though defendant did not design, manufacture or sell plaintiffs’ vehicles in the forum. The Court concluded defendant’s current advertising, sales and (purported) servicing of the same vehicle models were sufficiently “related” contacts to render jurisdiction fair.
PLAC’s amicus brief writer, Dave Geiger, has authored an article arguing the Court purports to rely on precedent and principles that do not support its decision, and the decision introduces vast uncertainty into a legal area the Court painstakingly clarified over the last decade. Questions raised include whether there is jurisdiction only if plaintiff’s residence or accident was in the forum or whether both are required; whether sales other than of the accident model count as sufficiently “related;” whether the Court really intended to support jurisdiction over past events by the manufacturer’s current forum contacts; and whether the Court really intended to impute to the manufacturer vehicle servicing performed by independent dealers.
To read the full article, published by the Washington Legal Foundation, click here.
We return to a theme we’ve repeated twice before, in 2011 and in 2014 – that in addition to industry-specific groups, manufacturers of prescription medical products should definitely consider joining the Product Liability Advisory Council (“PLAC”). We continue to believe that PLAC membership helps pharmaceutical and medical device defendants litigate stronger (through inter-industry cooperation on shared issues of concern), smarter (through cutting edge CLE and webinars), and more efficiently (utilizing PLAC’s online knowledge base and other resources).
Jim Beck, Esq.
Reed Smith LLP
PLAC's mission is to obtain fairness and balance in the common law of product liability. A primary tool to accomplish this mission is PLAC's Amicus Curiae Program, often called “The heart and soul of PLAC.”
PLAC has filed more than 1,200 amicus briefs, written by some of the nation’s top appellate practitioners. Our briefs have been accepted in virtually every state and federal court in the U.S. They are routinely acknowledged, quoted, and praised by courts in published opinions.
PLAC’s amicus briefs help shape the law for all manufacturers on important issues.
Questions? Email us at [email protected].
PLAC is a specialty bar association focusing on complex litigation and regulatory issues in the area of product development and product liability. Our not-for-profit association of product manufacturers, suppliers, retailers and select regulatory, litigation and appellate professionals who work to shape the common law of product liability and complex regulation, provide guidance on changing regulations, and strategically help corporations manage risk throughout the entire product lifecycle. PLAC is a unique resource for companies who must defend their products’ integrity and their companies’ reputation.
Connect with us on LinkedIn