Court backs unusual application of FRE 702


Ross v. Rothstein, 2015 U.S. Dist. LEXIS 30180 (March 12, 2015) 

Under Rule 702, may a court allow some part of the expert’s testimony in but exclude the meatiest part, the expert’s conclusions?

This evidentiary question recently came up in a case after a magistrate judge, who was charged with issuing recommendations to the court on the outcome of the case, decided the opinions of the defendant’s expert were inadmissible under FRE 702 because they represented impermissible legal conclusions. At the same time, the judge decided that numerous factual statements underlying the expert’s inadmissible conclusions were admissible background information. The expert had specialized knowledge on the subject matter, and some of his statements were helpful to the court in reaching legal conclusions, the judge said.

After she recommended an outcome unfavorable to the plaintiff, the latter challenged the Rule 702 application in federal court. The magistrate judge was wrong to permit the defendant’s expert “to testify about any ‘facts’ that support his properly excluded opinions,” the plaintiff contended.

The federal court recognized that the magistrate judge’s decision “left [the witness] in a relatively uncommon position for an expert.” But it found legal authority to support the magistrate’s ruling.

To read more about the court’s reasoning, click here.


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