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Strategic Considerations for Filing a Renewed Rule 702 Motion or Motion for Reconsideration

Arameh Z. O’Boyle

Strategic Considerations for Filing a Renewed Rule 702 Motion or Motion for Reconsideration
Utamaru Kido via Getty Images

The December 2023 amendments to Rule 702 of the Federal Rules of Evidence have significant implications for litigators seeking to exclude the testimony of unreliable expert witnesses. Given that the amendments are aimed at clarifying the standards for admissibility of expert testimony, they present an opportunity to reassess prior rulings by filing a renewed Rule 702 motion or a motion for reconsideration.

Although the revisions do not “impose any new, specific procedures,” (Fed. R. Evid. 702 advisory committee’s note to 2023 amendment) they emphasize and reinforce the court’s gatekeeping function. They also confirm that the critical questions of the sufficiency of an expert’s basis, and the application of the expert’s methodology, are questions of weight and not admissibility.

Rule 702 was amended with the understanding that it would apply to all cases, both new and pending, “insofar as just and practicable.” (Supreme Court Order frev23_5468 (April 24, 2023)). To date, a prominent or uniform mechanism for effectuating the intent of the amended rule has yet to emerge, but it is clear that the rule is significantly affecting how courts treat the question of expert admissibility.

Although the Federal Rules of Civil Procedure do not provide for a motion for reconsideration, it is commonly used to challenge interlocutory orders. Rule 54(b) explicitly provides that any order that adjudicates fewer than all the claims, rights, or liabilities of fewer than all the parties “may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties’ rights and liabilities.” In the six months since the amendments, courts have proven amenable to reevaluating their own prior determinations about expert admissibility given the clarified standards.

Just last month, the New Jersey District Court overseeing the Johnson & Johnson Talcum Powder multidistrict litigation agreed to a full refiling of Daubert motions given “the recent changes to Federal Rule of Evidence 702, the emergence of new relevant science, and the language of [the Judge’s] previous Daubert Opinion.” In re Johnson & Johnson Talcum Powder Products Marketing, Sales Practices, and Products Liability Litigation, 2024 WL 1914881, Civil No. 16-2738 (D.N.J. April 30, 2024). In reaching this decision, the court recognized that Rule 702 is not a change in evidentiary standards, but instead a clarification to address consistent misapplication of the rule: “The fact that Rule 702 is not a change in the law but a clarification is precisely why it would be inappropriate for this Court to preclude Defendants from challenging this Court’s previous Daubert holdings.” Id. at *3 (emphasis in original).

By filing a motion for reconsideration or a renewed Rule 702 motion, litigants can leverage the recent amendments to firmly emphasize the gatekeeping role of the court to ensure that only relevant and reliable expert opinion is admitted into evidence.