Behrens and Silverman: Delaware Supreme Court Embraces Amended FRE 702
In a July ruling, the Delaware Supreme Court fully embraced the 2023 amendments to Federal Rule of Evidence (FRE) 702, affirming that the state’s evidentiary rules governing expert testimony are consistent with federal law. In a Legal Opinion Letter for the Washington Legal Foundation, Shook Public Policy Group Co-Chair Mark Behrens and Partner Cary Silverman call the ruling “a victory for application of sound expert testimony standards in Delaware courts.”
In “Delaware Supreme Court Embraces Federal Rule 702 Amendments, Emphasizes Trial Courts’ Evidence-Gatekeeping Role,” Behrens and Silverman say the high court rejected a ruling from the state trial court that the state follows a “liberal thrust” standard “favoring admission” of expert testimony. Although the state’s Rule 702 has not yet been amended to mirror the updated federal rule, the state high court viewed the federal Advisory Committee’s comments “as important material” in “providing guidance to litigants,” they say.
“The Delaware Supreme Court made clear that: (1) ‘trial courts should not approach a challenge to expert testimony with any presumption toward admissibility’; (2) a trial court ‘abdicate[s] its gatekeeping role by passing crucial questions of sufficiency and reliability to the jury’; and (3) ‘close calls go to the jury’ is ‘not the correct standard under Delaware law,’” Behrens and Silverman say.
