In an April 2024 Washington Legal Foundation Working Paper, Evans Fears Schuttert McNulty Mickus partner Lee Mickus evaluated federal courts’ first 100 days of implementing amendments to Federal Rule of Evidence 702, which governs the admissibility of expert evidence. With apologies to Sergio Leone, Mr. Mickus labeled the outcomes “the good, the bad, and the ugly.”

Many of the bad and the ugly errantly relied on federal circuit court precedents which followed Rule 702 prior to its amendment or embraced precedents decided before the amendment. Some federal district courts cited circuit precedent which relied on caselaw that could be traced back to a period even before the U.S. Supreme Court’s Daubert v. Merrell Dow Pharmaceuticals, Inc. decision.

In the Working Paper, Mr. Mickus noted that counsel for defendants in cases involving expert evidence must both be on guard for plaintiffs who cite outdated caselaw and make clear in their own filings that Rule 702 has been amended.

The International Association of Defense Council (IADC) has produced a remarkable tool that will make defense attorneys’ task of identifying outdated, non-precedential caselaw easier. New Federal Rule of Evidence Rule 702: A Circuit-by-Circuit Guide to Overruled “Wayward Caselaw” represents hours of work by nearly 30 IADC members under the editorial guidance of Eric Lasker, a partner with Hollingsworth LLP and co-author of a law review article that invigorated Rule 702 reform, and Joshua Leader, a partner with Leader Berkon Colao & Silverstein LLP. The guidebook is available online here and in PDF format here.

The guidebook is organized by circuit. Each chapter describes the circuit cases that Rule 702’s amendment in essence overrules and provides valuable commentary.

In their introduction, Lasker and Leader conclude:

While the product of extensive work and analysis, this guide is not exhaustive – the decades of judicial defiance of the Rule’s admissibility requirement would make any such effort unattainable. And of course, practitioners using this guide must use their own judgment in explaining to courts why the identified decisions should no longer be followed. But – we hope – the guide provides a quick reference that will help relegate this wayward caselaw to the dustbin of legal history and clear the field for the proper application of Rule 702 moving forward.