Hollingsworth LLP Initiative to Secure FRE 702 Amendments Passes Major Hurdle
On June 7, 2022, the Committee on Rules of Practice and Procedure voted unanimously to approve the following proposed amendments to Federal Rule of Evidence 702: (1) to include the preponderance of the evidence standard directly into the rule; and (2) to amend subpart (d) to make it clear that the expert’s opinion must be based upon a reliable methodology that fits the facts of the case.
The Rules Committee’s approval of these two amendments to Rule 702 is a welcome development in strengthening Rule 702 to make certain that unreliable and junk science is not permitted into the courtroom. Hollingsworth LLP has long been working to ensure cases are decided upon reliable science, starting in the 1990s with Conde v. Velsicol (6th Cir. pesticide), Schudel v. GE (9th Cir. solvents), and the “Parlodel Trilogy" – Rider v. Sandoz (11th Cir. prescription drug), Hollander v. Sandoz (10th Cir. prescription drug), and Glastetter v. Novartis (8th Cir. prescription drug) – cases that represent the key to litigating against junk science. More recent wins include GE v. New Mexico (10th Cir. 2006) and Arias v. DynCorp (D.C. Cir. 2013), continuing to demonstrate the significant and key work the Firm has done in this area.
In addition to its work in the courtroom, creating key industry precedents in the area of admissibility of expert testimony, Hollingsworth LLP focused on an amendment to Rule 702 with a law review article in 2015, co-authored by Eric Lasker and Professor David Bernstein, that triggered the Rules Committee’s decision to look into the issue. See Eric Lasker & David Bernstein, "Defending Daubert: It’s Time to Amend Rule 702," 57 Wm. & Mary L. Rev. 1 (2015). Since then, we have continued to participate actively in this important issue for the defense bar. Mr. Lasker has testified several times in front of the Committee on Rules of Practice and Procedure about the proposed rule changes to Rule 702, including most recently, in January 2022, as part of the public hearing the Rules Committee held on the proposed rule changes that preceded the vote. Other Firm partners have contributed as well with written comments.
Hollingsworth LLP is pleased to share this development, which will help assist the defense bar ensure that cases are decided upon reliable science. We will continue to engage with the Rules Committee’s work and we will closely monitor the amendments are they are considered by the Judicial Conference of the United States, the U.S. Supreme Court, and Congress. If the rulemaking process proceeds as anticipated, the amendments will take effect on December 1, 2023.