Securities litigation often involves intricate expert evidence, rigorously tested under the Federal Rules of Evidence 702. For the first time in decades, Rule 702 saw substantial amendments last December. These changes underline the court’s role in assessing the reliability of expert opinions and suggest a shift in how ‘fit’—or the relevance of the evidence to the case—is determined. Despite this, courts have exhibited inconsistency in applying these amendments.
According to Jesse Jensen and Aasiya Glover from Bernstein Litowitz Berger & Grossmann, analysis of the initial cases since the amendments took effect shows divergent approaches. Approximately ten securities cases have addressed the changes, with varied outcomes.
Some courts have applied the new rules explicitly. For instance, in one case, the court noted its decisions would be identical under the old and new versions of Rule 702. Another, DoubleLine Capital v. Odebrecht Finance, acknowledged the amendments but indicated no impact on analysis. Other courts, however, applied the old rules or ignored the amendments entirely, as seen in In re Under Armour Securities Litigation.
This variability has resulted in a lack of uniformity in applying the 2023 amendments, which isn’t surprising given the slow pace at which securities case issues are resolved. Although amendments apply even to pending disputes, there’s no indication that parties have consistently asked courts to consider these changes.
Given that expert evidence is commonly used in securities cases, these amendments might increasingly be a basis to challenge or protect the admissibility of expert testimony. More courts may also adopt a stringent review process for expert admissibility under Federal Rule of Evidence 104(a).
For more detailed analysis, refer to the original article from Bloomberg Law here.