Amendments to the Rules of Evidence of Puerto Rico may become outcome-determinative with respect to the admissibility and weight of expert testimony in commercial litigation, including Law 75 cases.

For those who think that a local court in Puerto Rico is necessarily more favorable to a principal in Law 75 cases simply because there is no right to trial by jury, think again, after the recent amendments to the Rules of Evidence of Puerto Rico.

The Amendments conform to the structure and numbering of the Federal Rules of Evidence, but some of the changes are substantively far-reaching. One of those changes turns on the admissibility and weight of expert testimony. Significantly, the Puerto Rico evidentiary rules on expert testimony, as amended, depart from Daubert and progeny, norms that set the standards for the court’s gate-keeping role for the admission of reliable expert testimony. Instead, the Rules rely on Puerto Rico Supreme Court precedent which seems to be inclined to admit expert testimony, even if unreliable or untested, and leaves to the trier of fact to give the weight to that evidence as it deems appropriate. While the point is not free of debate, precedent in Puerto Rico seems to prefer admitting rather than summarily excluding expert testimony.

Not adhering to Daubert and progeny could have significant repercussions in commercial cases especially those that require expert testimony. One effect may well be that the local court would be less inclined to grant a motion in limine to exclude or limit unreliable expert testimony on the issue of damages. Law 75 cases almost always require expert testimony on the computation of damages. Thus, expert testimony may get admitted, and depending on the weight of all the other evidence, it may be more difficult to set aside a Judgment as clearly erroneous when the error has been that the court gave improper or undue due weight to expert testimony or where the determination turns on the credibility of one expert over the other.

So, if you are a distributor or a principal in a Law 75 case, where would you rather be if you had an opportunity to decide what forum to litigate in? It seems that the amendments of the Puerto Rico Rules of Evidence add another factor to the mix.