December 1 marks an important and long-awaited change to Federal Rule of Evidence 702. The Rule, pertaining to the testimony of expert witnesses, has not received a substantive update since 2000, when it was amended in the wake of the Daubert decision. Now, more than 20 years later—and after years of study—the Rule has been amended to make two issues clear: (1) that the proponent of an expert’s testimony must establish the admissibility of that testimony by a preponderance of the evidence; and (2) that an expert’s opinion must reflect a reliable application of his or her methodology to the case. These changes reinforce the key gatekeeping role that courts play in ensuring that only helpful, reliable expert testimony is heard by the factfinder.
Fifth Circuit Declines to Wade Into Circuit Split on Relationship Between Standing and Class Certification
In a recent published decision, the Fifth Circuit declined to articulate a rule for the “order and depth in which” it “grapples with constitutional standing and the Rule 23 inquiry.” Chavez v. Plan Benefit Services, Inc., __ F.4th __, No. 22-50368, 2023 WL 5160393 (5th Cir. Aug. 11, 2023). The court concluded that the plaintiffs—three employees who participated in health and retirement plans administered by the defendants—had standing to sue on behalf of absent class members who participated in thousands of different benefits plans administered by the defendants. The court went on to affirm the district court’s certification of two classes, each under both Rules 23(b)(1)(B) and 23(b)(3).
Split Supreme Court Weighs in on Corporate Consent to Personal Jurisdiction
Pennsylvania law requires foreign corporations to register to do business in the Commonwealth and provides that all registrants are subject to suit on “any cause” in the Commonwealth’s courts, regardless of a connection to the jurisdiction. In a split decision, the Supreme Court reversed a Pennsylvania Supreme Court decision finding that this general jurisdiction provision violated the Due Process Clause. Mallory v. Norfolk So. Railway Co., 600 U.S. __ (2023) (slip op. available here).
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Tenth Circuit Permits District Courts to Rely on Third and Seventh Circuit Ascertainability Precedent
The Tenth Circuit recently affirmed an order denying class certification, in an unpublished decision holding that district courts may rely on out-of-circuit precedent in deciding whether a proposed class is ascertainable.
Ninth Circuit Confirms State-Law Pre-Suit Notice Requirements Apply to Putative Class Representatives
A recent Ninth Circuit decision highlights the importance of considering whether a plaintiff’s failure to comply with a state-law pre-suit notice requirement can be used to quickly defeat a class action. The court rejected plaintiff’s argument that such pre-suit notice rules do not apply to putative class actions.